ROSEN, District Judge, dissenting.

DISSENT

The majority decision in this case reaches out to establish a new legal standard in prisoner civil rights actions, announcing law that is wholly advisory and immaterial as to the claim actually before us, yet binds future panels confronted with similar facts. Worse still, the majority seemingly fails to apprehend the true magnitude of its ruling, which will result in strict liability — or at least a triable factual issue — whenever a prison official cites a prisoner for misconduct and the charge subsequently is set aside, even though (i) the prisoner suffers no adverse consequences whatsoever while the charge is pending; (ii) the prisoner is afforded a prompt hearing at which to contest the charge; and (iii) there is no evidence, beyond the bare disposition of the charge itself, that casts doubt upon the prison official's considered judgment that a misconduct citation was warranted. This strict liability standard, in my view, will foster unwarranted and costly federal judicial intervention in the orderly functioning of state prisons, and runs counter to the Supreme Court command that "prison administrators . . ., and not the courts, [are] to make the difficult judgments concerning institutional operations." Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 2261, 96 L.Ed.2d 64 (1987) (internal quotations and citation omitted).

Further, by even reaching the merits of this case, the majority undermines an additional protection designed to shield the actions of state government officials from unwarranted judicial scrutiny — namely, the defense of qualified immunity. Several years ago, just after they were served with prisoner Cleveland Brown's complaint in this § 1983 action, the Defendant/Appellee employees of the Michigan Department of Corrections ("MDOC") promptly asserted qualified immunity in their first responsive pleading, a motion for summary judgment. The Supreme Court has instructed that "qualified immunity questions should be resolved at the earliest possible stage of a litigation," Anderson v. Creighton, 483 U.S. 635, 646 n. 6, 107 S.Ct. 3034, 3042 n. 6, 97 L.Ed.2d 523 (1987), and has cautioned that the central purpose of qualified immunity — namely, to ensure that government officials need not "stand trial or face the other burdens of litigation" unless "the conduct of which the plaintiff complains violated clearly established law" — is defeated if the courts erroneously withhold such immunity, Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 2815, 86 L.Ed.2d 411 (1985). Likewise, this Court has observed that the defense of qualified immunity "not only protects a defendant from liability but may also protect a defendant from the burdens of trial and discovery," English v. Dyke, 23 F.3d 1086, 1089 (6th Cir. 1994), and we have deemed it prudent to consider this defense, even if not addressed in the court below, in order to avoid an "unnecessary" remand and "protracted litigation," Spurlock v. Satterfield, 167 F.3d 995, 1004 n. 16 (6th Cir. 1999).

Nonetheless, despite two rounds of proceedings before the District Court and two appeals to this Court, no consideration has yet been given to Defendants' claim of qualified immunity. The majority does not question our discretionary authority to reach this issue, and expressly recognizes that Defendants will be free to reassert this defense on remand, a right Defendants surely will exercise. Yet, the majority does not endeavor to explain what might possibly be gained through further postponement of this inquiry — the District Court previously conferred the entire period of discovery sought by the parties, ( see J.A. at 340, 343), the record on appeal includes the entire pertinent history of Brown's grievances and their attendant circumstances, the parties have addressed the issue of qualified immunity in papers filed both here and in the court below, and we are in just as good a position as the District Court to decide the purely legal question whether the evidence, viewed most favorably to Brown, could establish a violation of a constitutional right that was clearly established at the time of Defendants' actions, see Dickerson v. McClellan, 101 F.3d 1151, 1157-58 (6th Cir. 1996).

The majority's reticence on the defense of qualified immunity is particularly unfortunate here, where this immunity is certain to be conferred upon remand. The majority determines on the merits that the District Court misapplied "the law" governing Brown's First Amendment retaliation claim, ( see Majority Op. at 787), where the "law" in question is this Court's decision in Thaddeus-X v. Blatter, 175 F.3d 378 (6th Cir. 1999). Yet, because Thaddeus-X was decided in 1999, nearly a year after the conduct at issue here, the law we announced in that case will have no bearing upon the question before the District Court following our remand of this case — namely, whether Defendants are entitled to qualified immunity under the law as it stood at the time of their actions. This prior law expressly required that Defendants' allegedly retaliatory conduct be "shocking to the conscience." See, e.g., McLaurin v. Cole, 115 F.3d 408, 410-11 (6th Cir. 1997); Cale v. Johnson, 861 F.2d 943, 950-51 (6th Cir. 1988). If it is doubtful, in my judgment, that Brown can satisfy the standard set forth in Thaddeus-X, it is plain that he has not identified any conduct that shocks the conscience.

Accordingly, I cannot join in the majority's election to brush aside this simple and wholly ripe issue, and to instead engage in a purely advisory discussion of how Thaddeus-X would apply to the facts before us. Through this course of action, we now extend this litigation into its fifth year and third round of District Court proceedings, making the proverbial "federal case" — and one of constitutional dimension, no less — out of what is, at bottom, a bookkeeping dispute over $51.24 in Brown's prison trust account. At the same time, we announce substantive law which, in my view, not only fails to advance this litigation, but promises to produce the wrong result in subsequent cases. For these reasons, I respectfully dissent.

I.

The majority accurately summarizes the procedural history of this case, and explicitly confirms the crucial point that Defendants have preserved their defense of qualified immunity. I write further on this subject, however, to illustrate my belief that any limited "waiver" of this defense in this case is far more attributable to the courts than to Defendants, and hence should be corrected at the earliest opportunity.

Back in January of 1999, a few months after Brown commenced this suit, Defendants moved for summary judgment in their favor, based in part upon the defense of qualified immunity. As noted, this was their first responsive pleading in the case. In a Report and Recommendation ("R R") dated July 30, 1999, the Magistrate Judge did not address the issue of qualified immunity, but nevertheless recommended that Defendants' motion for summary judgment be granted and that the case be dismissed in its entirety. Regarding Brown's claim that Defendants had retaliated against his exercise of First Amendment rights by citing him for misconduct, the Magistrate thoroughly surveyed the relevant case law, including our then-recent decision in Thaddeus-X, and found that Brown had failed to produce any evidence of retaliatory animus that might cast doubt on Defendants' affidavits stating that they had acted in good faith in issuing a misconduct charge. Brown failed to interpose any objections to the R R, and it was adopted as the opinion of the District Court in an August 30, 1999 Order and Judgment.

Regrettably, when Brown appealed the 1999 judgment, this Court misapprehended the procedural posture of the case. In his initial appellate submission, Brown correctly noted that Defendants had invoked the defense of qualified immunity, and he challenged both the District Court's grant of summary judgment and Defendants' claimed entitlement to qualified immunity. Nonetheless, a panel of this Court erroneously reviewed Brown's First Amendment retaliation claim as though it had been dismissed as frivolous and for failure to state a claim under 28 U.S.C. § 1915(e)(2)(B). The panel held that Brown had alleged facts sufficient to state a claim of retaliation under Thaddeus-X — a conclusion which, of course, said nothing about the propriety of the District Court's grant of summary judgment in Defendants' favor on this claim. Thus, our initial decision did nothing to advance the resolution of Brown's retaliation claim, but instead tended to muddy the procedural waters.

Upon remand, Defendants filed an answer in which they asserted the affirmative defense of immunity, and the parties sought and were granted a modest period of discovery. Promptly after the close of discovery, Defendants again moved for summary judgment in their favor on Brown's sole remaining claim of retaliation. Somewhat predictably, this motion omitted any mention of qualified immunity — after all, the courts had studiously ignored the subject up to that point — and instead drew upon the grounds already identified in the Magistrate Judge's earlier R R as warranting summary judgment. Given this prior determination, it should come as no surprise that the Magistrate once again recommended that Defendants' motion be granted. This latest R R was adopted as the opinion of the District Court, and Brown has again appealed. In their current appellate brief, Defendants have raised (for the third time) the defense of qualified immunity, as an alternative basis for affirming the District Court's judgment.

In light of this procedural history, the only sense in which Defendants might be said to have "waived" the defense of qualified immunity is through their failure to rehash the issue before each and every court at each and every available opportunity. Even then, this course of conduct would be wholly understandable, where no court throughout this protracted litigation has yet heeded the Supreme Court's instruction that "qualified immunity questions should be resolved at the earliest possible stage of a litigation," Anderson, 483 U.S. at 646 n. 6, 107 S.Ct. at 3042 n. 6, and where the supposed benefit of this immunity — namely, freedom from the burden of litigating claims not involving a violation of clearly established law — has long since been lost. For whatever reason, the courts cannot seem to resist the allure of measuring Brown's retaliation claim by the standards of Thaddeus-X, even though, as discussed below, those standards are exceedingly unlikely to play any role in the ultimate disposition of this case.

Under these circumstances, where Defendants have adequately preserved the defense of qualified immunity, and where we undoubtedly have the authority to reach the issue, "the right question is whether the extent of qualified immunity is ripe for decision." Buckley v. Fitzsimmons, 20 F.3d 789, 793 (7th Cir. 1994), cert. denied, 513 U.S. 1085, 115 S.Ct. 740, 130 L.Ed.2d 642 (1995). The answer to this question is clearly yes, in my judgment, and the majority fails to suggest any basis for concluding otherwise. I see no meaningful analytical distinction between the inquiry I advocate and the one the majority conducts — in either case, we survey precisely the same record in exactly the same way ( i.e., under summary judgment principles, resolving all factual disputes in Brown's favor), and ask how Defendants' actions measure up against the relevant legal standard. The only difference is as to the substantive law we would apply: the majority looks to Thaddeus-X, while I would consult the law that was clearly established at the time of Defendants' conduct. In other words, the choice is between two purely legal questions, with either to be resolved under the very same record. There is no reason, then, why we should further defer the qualified immunity inquiry, particularly where, as explained below, the issue is readily addressed and the outcome is clear.

II.

Because Defendants unquestionably have preserved the defense of qualified immunity, we can be sure that they will immediately pursue it again upon remand to the District Court. Regardless of who wins or loses on this issue, an immediate appeal would almost certainly follow. See Dickerson, 101 F.3d at 1156-57; Buckley, 20 F.3d at 793. The case would return to this Court "like a yo-yo," with "[t]ime . . . lost, and nothing gained, by these additional steps." Buckley, 20 F.3d at 793. This process would be particularly wasteful here, as there is no doubt, in my view, that Defendants are entitled to qualified immunity.

In conducting this inquiry, we first ask "whether, based on the applicable law, a constitutional violation occurred," and if so, we then consider "whether this violation involved clearly established constitutional rights of which a reasonable person would have known" at the time of the alleged violation. Spurlock, 167 F.3d at 1005 (internal quotations and citations omitted). "Both questions must be answered in the affirmative in order to defeat a government official's claim to qualified immunity," and "the burden is on the plaintiff to allege and prove that the defendant violated a clearly established constitutional right." 167 F.3d at 1005. I will assume, for the moment, that Brown can satisfy the first prong of this inquiry — namely, that he has alleged and can prove that one or more Defendants retaliated against his exercise of First Amendment rights.

Turning to the second question, it is a simple matter to ascertain the clearly established law that governed Defendants' actions in early 1998. Just a few months earlier, in June of 1997, this Court decided a case where, as here, the plaintiff prisoner, Jack McLaurin, alleged that the defendant corrections officer, Russ Cole, had issued a misconduct ticket in retaliation for a grievance that McLaurin had filed against Cole a few days earlier. See McLaurin, 115 F.3d at 409. We squarely rejected McLaurin's contention that his case was not governed by the "shocks the conscience" standard, noting our "repeated demand that retaliation claims arising from the exercise of First Amendment rights be shocking to the conscience." 115 F.3d at 410.

Our 1999 decision in Thaddeus-X confirms this then-existing state of the law, acknowledging that we previously had applied a "shocks the conscience" standard in some instances, and declaring that these prior rulings, including McLaurin, are "no longer the law of this Circuit." Thaddeus-X, 175 F.3d at 387-88. More recently, though we criticized McLaurin's reading of Sixth Circuit precedent, we nonetheless recognized that, once this 1997 ruling was issued, "a reasonable official might [have] expect[ed] to escape liability for retaliatory acts falling short of conscience-shocking abuses of power." Bell v. Johnson, 308 F.3d 594, 612 (6th Cir. 2002). Accordingly, because Thaddeus-X had not yet been decided at the time of Defendants' conduct in this case, McLaurin's "shocks the conscience" test governs the second prong of the qualified immunity inquiry.

Our decision in McLaurin, under somewhat similar facts, also serves to confirm that Brown cannot hope to demonstrate a violation of this clearly established law. The retaliation claim in that case proceeded to trial, and plaintiff McLaurin testified that defendant Cole had wrongfully issued a groundless misconduct ticket against him, citing him for threatening Cole's life. McLaurin further testified that this ticket was issued solely to retaliate against the grievance he previously had filed against Cole, charging this corrections officer with destruction of the legal materials in McLaurin's prison cell. At the close of this testimony, the District Court entered judgment as a matter of law in Cole's favor, holding that McLaurin had "offered no evidence whatsoever to establish that [Cole's] issuance of the misconduct ticket was an `egregious abuse of governmental power,'" and that, accepting McLaurin's testimony as true, Cole's "actions d[id] not rise to such a level as to `shock the conscience' of this court." McLaurin, 115 F.3d at 409-10 (quoting District Court order). We affirmed the District Court's judgment on appeal, based in part upon our conclusion that Cole's "actions were not shocking to the conscience." 115 F.3d at 411.

In the present case, Brown's claim of retaliation rests solely upon the major misconduct charge issued against him. McLaurin establishes that this does not constitute an "egregious abuse of governmental power" that would "shock the conscience" of this Court. Thus, if Defendants here had reviewed our roughly contemporaneous McLaurin decision at the time of the incidents giving rise to Brown's retaliation claim, they doubtless would have concluded that they could issue a misconduct ticket against Brown without fear of being haled into court and accused of violating a clearly established constitutional right.

Indeed, even without benefit of McLaurin's guidance, this conclusion would be unassailable. Under anything but the most extraordinary of circumstances, a prison official does not abuse his position of authority merely by invoking a conventional administrative procedure for sanctioning prisoner misconduct. The filing of a misconduct charge, after all, triggers a whole panoply of procedural safeguards, including the entitlements to a prompt evidentiary hearing, to present evidence and arguments, to request a rehearing, and to seek judicial review. See Mich. Comp. Laws §§ 791.252, 791.254, 791.255. See generally Copeland v. Machulis, 57 F.3d 476, 480 (6th Cir. 1995) (holding that this "extensive process provided by Michigan state law" comports with "established constitutional guidelines" for due process). It seems to me, then, that a prison official's use of this misconduct mechanism is not exactly fraught with potential for abuse, and would not "shock the conscience" absent additional indicia of malice, such as evidence of actual animus, a pattern of repeated filings, or denial of the procedural checks and balances attendant to a misconduct charge. Cf. Morissette v. Peters, 45 F.3d 1119, 1122 (7th Cir. 1995) (holding that there is "no denial of due process" where an erroneous disciplinary charge "is corrected in the administrative appeal process"); Young v. Hoffman, 970 F.2d 1154, 1156 (2d Cir. 1992) (same), cert. denied, 510 U.S. 837, 114 S.Ct. 115, 126 L.Ed.2d 80 (1993).

The record confirms that there was nothing remotely shocking or abusive in the circumstances surrounding the misconduct charge in this case. The misconduct report was written on April 21, 1998, and Brown was given a hearing just a few days later, on April 30, 1998, after which he was adjudged not guilty of the charge. As noted by the majority, Brown already was in administrative segregation at the time the misconduct was issued, and thus he did not suffer even a temporary deprivation of any privileges for the few days the charge was pending. Moreover, as discussed in greater detail below, Brown's claim of retaliation rests solely upon information gleaned from within the four corners of the misconduct charge and hearing report, and not upon any extrinsic evidence from which it might be inferred that Defendants were "out to get him," that they acted maliciously or recklessly, or that the misconduct charge was part of a larger pattern of malfeasance. Under this record, Defendants' conduct could not remotely be characterized as shocking, but rather as utterly benign.

Finally, and by way of contrast, I find it instructive to compare this case with one in which we found that a prison official's alleged act of retaliation did constitute an egregious abuse of power. Specifically, in Cale, supra, the plaintiff prisoner, Louis Cale, complained about the poor quality of the prison food, and this complaint was relayed to the defendant administrator of food service, James Wahl. A cook foreman testified that he overheard Wahl stating that "he would have Cale locked up and that that would be the end of Cale's complaints," and that Wahl alerted a duty officer to be ready for a call to the dining room at about three o'clock that afternoon. Cale, 861 F.2d at 944.

Sure enough, at around 3:00 p.m. that day, the duty officer was summoned to the dining hall to investigate the following incident:

At that time, allegedly under Wahl's direction, inmate Melvin Persky, who worked in the kitchen, approached Cale from behind and placed a small package in his pocket. Cale began shouting repeatedly, "You're trying to set me up." Cale was approached by safety and occupational health specialist Harry Farris who placed his hand around the upper portion of Cale's arm to get his attention. Cale stated to Farris, "Oh, I'm glad it's you, Mr. Farris. You are fair. These ____ are trying to set me up." At that time, Wahl shouted at Farris to get the packet from Cale. Farris did not know what Wahl meant by this statement, but Cale threw a piece of paper which was folded in a small square on the top of the main serving line directly in front of Farris. This packet subsequently was determined to contain marijuana. Cale again became very agitated and shouted accusations at Persky. 861 F.2d at 944. Upon arriving at the scene, the duty officer determined that Cale should be charged with possession of narcotics and threatening others with bodily harm. Cale was placed in administrative segregation, until a disciplinary committee determined a few days later that Cale had not violated any of the prison's disciplinary rules.

On this record, we reversed the District Court's award of summary judgment in favor of defendant Wahl. In so ruling, we noted that the "shocks the conscience" standard governed Cale's claim, but found that Cale's evidence, if credited by the trier of fact, would establish the requisite "egregious abuse of governmental power." 861 F.2d at 949-50. Specifically, we held that "the evidence supports a claim that Wahl intentionally and maliciously framed Cale and filed disciplinary charges against him in retaliation for Cale's exercise of his first amendment rights." 861 F.2d at 950.

The distinctions between Cale and this case are evident. First, and most obviously, Cale features direct evidence of retaliatory conduct, with defendant Wahl explicitly stating, according to one witness, that he would have Cale locked up in order to put an end to his complaints. Next, in going about this stated mission, Wahl did not merely scrutinize Cale's behavior in an effort to identify a punishable offense. Rather, Cale produced evidence that Wahl actively abused his position of authority, first by instructing another inmate to plant illegal narcotics on Cale, and then by arranging for other prison officials to witness and bring charges for this trumped-up offense. As noted in Judge Nelson's concurrence, "Wahl surely had no authority to cause illegal drugs to be planted on the person of a prison inmate for any purpose at all, retaliatory or otherwise," and "had absolutely no business trying to make it appear that the inmate was guilty of an infraction of which he was innocent." Cale, 861 F.2d at 951 (Nelson, J., concurring).

The record before us, in contrast, includes no such direct evidence of retaliatory motive. More importantly, even if such a motive could be inferred from the record — and, as explained below, I do not believe that it can — the evidence does not remotely suggest that Defendants acted upon this purported motive by knowingly manufacturing false charges against Brown. Rather, the worst that can be said about the misconduct charge in this case is that it was set aside following a prompt hearing. In the meantime, Brown suffered no ill consequences whatsoever. If Defendants set about to punish Brown for his exercise of First Amendment rights, they picked a remarkably benign and wholly above-board means of doing so. Under this record, the District Court surely will determine upon remand that Defendants are entitled to qualified immunity. There is no reason why we should not make this same determination here and now.

III.

For the reasons set forth above, I think it irrelevant whether Brown's retaliation claim could survive summary judgment under the analytical framework adopted in Thaddeus-X. Because the majority has weighed in on this issue, however, and has announced new and sweeping legal standards in the process, I find it necessary to state my quite different view of how Brown's claim would fare under Thaddeus-X. Thaddeus-X establishes a three-element test for retaliation claims, under which a prisoner must show: (i) that he engaged in protected conduct; (ii) that adverse action was taken against him that "would deter a person of ordinary firmness from continuing to engage in" the protected conduct; and (iii) that there was a causal connection between the protected conduct and the adverse action. Thaddeus-X, 175 F.3d at 394. As discussed below, I believe that the record fails as a matter of law to establish the second and third prongs of this standard. More generally, there is no direct evidence of a retaliatory motive for Defendants' conduct, and Brown's evidence does not permit the inference that Defendants acted with such a motive in charging Brown with misconduct. Even by reference to Thaddeus-X, then, the District Court properly awarded summary judgment in Defendants' favor.

Before addressing my principal points of disagreement with the majority, I first note that the inquiry under the first, "protected conduct" element of Thaddeus-X is not quite so clear-cut as the majority seems to believe. The majority has no doubt, and Defendants themselves concede, that Brown was engaged in protected conduct when he complained about alleged overcharges to his prison account. And, to be sure, we have recognized an inmate's "undisputed First Amendment right to file grievances against prison officials on his own behalf." Herron v. Harrison, 203 F.3d 410, 415 (6th Cir. 2000). Herron also establishes, however, that this conduct is protected "only if the grievances are not frivolous." Herron, 203 F.3d at 415. Similarly, "while a prisoner may have a right to file grievances against prison officials, he or she cannot exercise that right in a manner that violates legitimate prison regulations or penological objectives." Smith v. Campbell, 250 F.3d 1032, 1037 (6th Cir. 2001).

To the extent that Brown complained about overcharges, it was determined at the subsequent misconduct hearing that Brown's perception on this point was "not unreasonable at all." (J.A. at 201.) This finding, I would agree, raises a triable issue of fact as to whether Brown's complaints on this point were nonfrivolous, and hence protected. What the majority fails to address, however, is that Brown did a good deal more than merely claim that his account had been overcharged. In particular, Brown wrote to the Michigan State Police and a local prosecutor, demanding that criminal charges of embezzlement be brought against a prison accountant and the prison warden. ( See J.A. at 206-07.) Even to this day, in his brief in the present appeal, Brown continues to insist that Defendants embezzled funds from his prison account, and he further contends that Defendants falsified documents and lied in order to interfere with any investigation of these criminal charges.

As noted in the misconduct ticket itself, such charges go far beyond mere complaints that Brown had been overcharged for his prison debts. Brown's serious accusations, if accepted, "would ordinarily result in disciplinary actions being initiated against" the accused prison officials. (J.A. at 200.) Yet, an Internal Affairs investigation determined that these allegations of criminal wrongdoing lacked merit, and absolutely nothing in the record suggests that any prison official engaged in criminal conduct of any sort. Even the misconduct hearing report, the centerpiece of Brown's retaliation claim and the majority's analysis, states only that there was insufficient evidence to conclude that Brown "deliberately file[d] false allegations with [t]he specific intent of having staff disciplined." (J.A. at 201.) This finding, of course, says little or nothing about whether Brown's allegations of criminal misconduct were ungrounded and frivolous, and hence ineligible for First Amendment protection. It is important to bear this point in mind in analyzing Brown's claim of retaliation.

Turning to the second prong of the Thaddeus-X standard, the majority concludes that the mere "risk of significant sanctions," (Majority Op. at 787), without more, constitutes the requisite "adverse action" that permits Brown's retaliation claim to go forward. Indeed, this hypothetical "risk" alone must suffice in this case, because Brown has not identified any actual, concrete consequence of the misconduct charge against him. During the few days that this charge was pending, Brown suffered absolutely no change in the conditions of his confinement, nor any reduction in privileges; as conceded by the majority, Brown already was in administrative segregation at the time. Neither did the misconduct charge produce any lasting effects upon Brown's prison stay or disciplinary record, as the charge was set aside following a prompt hearing.

Thaddeus-X requires that an alleged act of retaliation be truly "adverse," and explains that "certain threats or deprivations are so de minimis," "inconsequential," or "trivial" that they cannot sustain a First Amendment retaliation claim. Thaddeus-X, 175 F.3d at 398. In determining whether an action is "adverse," we ask if it would "deter a person of ordinary firmness from the exercise of the right at stake." 175 F.3d at 396 (internal quotations and citation omitted). Where, as here, a challenged action has no consequences whatsoever, either immediate or long-term, it ineluctably follows that such an action is "inconsequential." Nor can it plausibly be argued that the misconduct charge in this case would have chilled the exercise of First Amendment rights; to the contrary, the prompt and favorable disposition of this charge surely would be viewed by a reasonable inmate as vindicating his right to pursue good-faith grievances. Given the context-specific nature of the "adverse action" inquiry, see Thaddeus-X, 175 F.3d at 398, I find it unduly myopic to focus solely upon the filing of the misconduct charge in isolation, without regard for the procedural safeguards triggered by this filing and the proper functioning of these safeguards in this case.

More generally, I see no limiting principle whatsoever in the majority's risk-based theory of adverse action. Plainly, this inchoate "risk" of adverse consequences need never be realized, as it was not here. How definite or imminent, then, must a "risk" be in order to satisfy the second prong of Thaddeus-X, and how many hypothetical leaps are permissible before a "risk" is deemed inconsequential? Would it have sufficed in this case if Defendants had sent Brown a threatening letter, warning that they would pursue misconduct charges if he made any further allegations of embezzlement? The majority provides no guidance on these questions, nor does it cite any authority that might assist future courts in determining when a mere "risk" of consequences alone might constitute "adverse action."

My own research has failed to uncover any support for the proposition that a showing of adverse action may rest upon mere potentialities that never come to pass. To the contrary, we have affirmed the dismissal of a First Amendment retaliation claim for lack of any "concrete injuries" suffered by the plaintiff. Jackson v. City of Columbus, 194 F.3d 737, 757 (6th Cir. 1999), overruled on other grounds by Swierkiewicz v. Sorema N.A., 534 U.S. 506, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002); see also Franco v. Kelly, 854 F.2d 584, 590 (2d Cir. 1988) (holding that a prisoner would be entitled to relief under a First Amendment retaliation theory if he could "prove his allegation that he was subjected to false disciplinary charges and subsequent punishment " as a result of his protected activity (emphasis added)). It is not enough, moreover, that the plaintiff identify a concrete change in the conditions of his confinement, if this change is not adverse. We have held, for example, that a lateral transfer from one prison facility to another does not suffice to sustain a retaliation claim, even though this transfer might have "some effect on [the plaintiff prisoner's] future filing of grievances," and even though this transfer might be intended in part "to give prison staff a respite from [the prisoner's] continuous barrage of grievances." Ward v. Dyke, 58 F.3d 271, 274-75 (6th Cir.), cert. denied, 516 U.S. 991, 116 S.Ct. 524, 133 L.Ed.2d 431 (1995).

Likewise, in the related context of employment-based retaliation claims, we have required that a plaintiff identify a "materially adverse" effect upon the terms and conditions of his or her employment. See Hollins v. Atlantic Co., 188 F.3d 652, 662 (6th Cir. 1999). We have held that this standard is not satisfied by an interim decision to deny tenure, or even an outright discharge, which is overturned in a subsequent grievance process, and which produces no "final or lasting" harm, see Virts v. Consolidated Freightways Corp., 285 F.3d 508, 522 (6th Cir. 2002); Dobbs-Weinstein v. Vanderbilt Univ., 185 F.3d 542, 545-46 (6th Cir. 1999), cert. denied, 529 U.S. 1019, 120 S.Ct. 1421, 146 L.Ed.2d 313 (2000); the temporary loss of a position, see Bowman v. Shawnee State Univ., 220 F.3d 456, 461-62 (6th Cir. 2000); a short-term suspension with pay, see Jackson, 194 F.3d at 744, 752; or allegedly unjustified disciplinary measures, such as "counseling memoranda," that have no material effect upon the terms and conditions of the plaintiff's employment, see Allen v. Michigan Dep't of Corrections, 165 F.3d 405, 408, 410, 413 (6th Cir. 1999); Walborn v. Erie County Care Facility, 150 F.3d 584, 590 (6th Cir. 1998). One of our observations in Dobbs-Weinstein applies with full force here-that, if we were to accord "adverse" status to interim decisions that are subject to further internal review, the result "would be to encourage litigation before the [defendant] has an opportunity to correct through internal grievance procedures any wrong it may have committed." Dobbs-Weinstein, 185 F.3d at 546.

The Thaddeus-X standard expressly derives from this body of employment law. See Thaddeus-X, 175 F.3d at 388-90, 394. Yet, we recognized that, in light of the paramount concern for "[s]afety and order" in the prison setting, "[a] prisoner's First Amendment rights are not more extensive than those of a government employee; in fact, under most clauses of the First Amendment, they are much more strictly limited." Thaddeus-X, 175 F.3d at 392. More specifically, regarding the "adverse action" element of a retaliation claim, we explained that "[p]risoners may be required to tolerate more than public employees, who may be required to tolerate more than average citizens, before an action taken against them is considered adverse." Thaddeus-X, 175 F.3d at 398. It follows, then, that actions the same as or comparable to those we have deemed non-adverse in our employment cases must be non-adverse in the prison context as well. The majority opinion stands this equation on its head, however. I cannot conceive that the average inmate's sensibilities are so delicate and easily offended that a mere risk of disciplinary measures — a stock-in-trade of the prison environment, as I understand it — would deter him or her from filing grievances to challenge perceived wrongdoing.

My strongest point of disagreement with the majority, however, concerns its application of the third, "causal connection" element of the Thaddeus-X test to the facts of this case. Having seemingly determined that all of Brown's grievance-related activity is protected conduct, the majority has no difficulty in concluding that the major misconduct charge was causally related to this conduct. And, indeed, the record is clear on this issue, at least as the majority has framed it. Following an Internal Affairs investigation which determined that Brown's allegations of embezzlement were "without merit," Regional Prison Administrator Richard Johnson requested that a misconduct ticket be issued against Brown:

We have been seeing more and more of these false complaints lately. While I believe a prisoner should be able to file a legitimate complaint, they also should be punished for filing false complaints. Therefore, please issue a major misconduct ticket to the prisoner regarding this matter.

(J.A. at 204.) I wholeheartedly agree with the majority that Johnson's statement expressly links the misconduct charge to Brown's prior grievances and complaints to public officials concerning the funds in his prison account.

Contrary to the majority's reasoning, however, this is only the beginning of the "causal connection" analysis, and not the end. Any time a prison official charges an inmate with misconduct for filing a false complaint, there is an undeniable causal link between the prisoner's complaint and the misconduct charge. Yet, the relevant consideration, as always in retaliation cases, is "the subjective motivation of the decisionmaker" — "that is, the plaintiff must show that the decision was motivated, at least in part, by the plaintiff's protected activity." Smith, 250 F.3d at 1038.

Taking Richard Johnson at his word, this motivation is lacking here. Johnson requested that a misconduct ticket be issued in light of Brown's "false complaint" of embezzlement. As explained earlier, a prisoner who files a frivolous complaint or who exercises his right to file grievances in a manner that violates legitimate prison regulations and objectives is not engaged in protected activity, and a prison official does not unlawfully retaliate by taking action against such unprotected conduct. See Smith, 250 F.3d at 1037; Herron, 203 F.3d at 415. Johnson's stated motive is precisely this permissible one — and, indeed, he recognized that it would not be appropriate to take action against a legitimate grievance. On its face, then, Johnson's statement breaks the relevant causal connection, rather than serving as evidence of it as the majority holds. In other words, Johnson's statement indicates that he could not possibly be acting with the impermissible motive of retaliating against Brown's exercise of First Amendment rights because, in Johnson's view, Brown was not even engaged in protected conduct when he accused prison officials of embezzlement.

Hence, in order to survive summary judgment on the "causal connection" element of the Thaddeus-X standard, Brown must identify a genuine issue of fact as to whether Defendants were motivated, at least in part, by Brown's protected conduct. Brown must make this showing, moreover, in the face of Johnson's express contemporaneous statement that he was not so motivated, but instead directed that Brown be charged with misconduct for engaging in unprotected activity that was disruptive to the orderly operation of the prison. It is a familiar principle of summary judgment law, of course, that Brown cannot "rely on the hope that the trier of fact will disbelieve" Johnson's account, but "must present affirmative evidence" of a retaliatory motive. See Street v. J.C. Bradford Co., 886 F.2d 1472, 1479 (6th Cir. 1989) (internal quotations and citations omitted).

The only possible candidate for such "affirmative evidence" that I can discern from the majority opinion, or from the record as a whole, is the determination of the hearing officer that Brown's misconduct charge should be set aside. In particular, the majority quotes the hearing officer's findings that Brown was "not unreasonable" in believing that his prison debt had already been paid, and that Brown probably "did legit[i]mately think [that] someone was taking his money and . . . that his alle[g]ations were not false." (J.A. at 201.) The entire focus of the hearing officer's inquiry, however, was whether Brown "deliberately and intentionally filed a false claim with the specific purpose of misleading" prison officials or "having staff disciplined." ( Id.)

The hearing report, consequently, seems a poor place to look for evidence of Defendants' motivation in charging Brown with misconduct. The most that can be said from this document is that Defendants failed to prove — to the satisfaction of the hearing officer, at least, and under the "higher burden of proof" imposed by the officer, ( id.) — that Brown had intentionally filed a false claim for an improper purpose. This says nothing about why Defendants accused Brown of this misconduct in the first instance. From the hearing report alone, one could equally well speculate, for example, that Defendants (i) honestly believed, after a thorough investigation, that Brown's allegations of embezzlement were knowingly false; (ii) arrived at this belief only through a careless disregard for the records Brown had produced in support of his allegations; or (iii) knowingly and deliberately lodged a false charge against Brown in retaliation for his filing of grievances and complaints against them. Only the last of these hypotheses, of course, would sustain Brown's claim of retaliation, but the trier of fact could not permissibly draw this inference, unless and until presented with evidence that tends to counter Johnson's express and still-unchallenged statement of his lawful, non-retaliatory motive for instructing that Brown be charged with misconduct.

Indeed, the case law demonstrates, in my view, that the hearing officer's findings cannot bear the evidentiary weight that the majority places upon them. In applying the "protected conduct" prong of Thaddeus-X, for example, we have explained that a prisoner's claim "need not be successful to be non-frivolous," and that such a claim is protected so long as it is "arguable." See Bell, 308 F.3d at 607 n. 5 (citing Lewis v. Casey, 518 U.S. 343, 352-53 nn. 2, 3, 116 S.Ct. 2174, 2180-81 nn. 2, 3, 135 L.Ed.2d 606 (1996)). By the same logic, the hearing officer's dismissal of Brown's misconduct charge after a hearing on the merits says nothing about whether the charge had arguable merit, was frivolous, or was brought in bad faith, particularly given the hearing officer's application of an elevated standard of proof in adjudicating the charge. Though it might well be necessary to Brown's claim of retaliation that he secure the administrative reversal of the misconduct charge, see, e.g., Cowans v. Warren, 150 F.3d 910, 912 (8th Cir. 1998); Jackson-El v. Winsor, 986 F.Supp. 440, 444-46 (E.D.Mich. 1997), aff'd, 201 F.3d 440 (6th Cir. 1999), this alone is not sufficient to raise a triable issue of fact as to Defendants' motives for issuing the charge.

Rather, I believe that this inquiry is governed by the traditional standards, firmly established in our employment law decisions, for analyzing disputes over a defendant's stated reasons for taking a particular action. Defendants having identified a lawful, non-retaliatory ground for the misconduct charge — namely, their determination, following an investigation, that Brown had asserted false claims of embezzlement — Brown then "bears the ultimate burden of proving that the proffered reason for the [misconduct charge] was merely a pretext" for retaliation. Penny, 128 F.3d at 417. A plaintiff generally establishes pretext through one of three routes, showing either (i) that the defendant's proffered reason has no basis in fact; (ii) that this reason did not actually motivate the defendant's action; or (iii) that this reason was insufficient to motivate the defendant's action. Weigel, 302 F.3d at 378.

I have already explained why, in my view, the outcome of the misconduct hearing tells us nothing about Defendants' actual motivation, and the record contains nothing bearing upon the sufficiency of this motivation — Brown has not suggested, for example, that other prisoners have made comparable false complaints yet not been cited for misconduct. This leaves Brown and the majority to rely on the first form of pretext. The majority apparently concludes, again on the basis of the findings at the misconduct hearing, that issues of fact remain as to the factual basis for Defendants' determination that Brown should be disciplined for making false claims of embezzlement.

This conclusion, however, once again runs afoul of our precedents. Let us assume, for the moment, that the findings at the misconduct hearing establish that Defendants were mistaken in believing that Brown had made false claims. Even so, in assessing the factual basis for a defendant's action, we do not require that the defendant's belief ultimately prove correct by objective measures, but only that this belief be "honestly held" and reasonably based upon the "particularized facts" before the defendant at the time of the challenged action. Smith v. Chrysler Corp., 155 F.3d 799, 806-07 (6th Cir. 1998). The rationale behind this variant of the "honest belief" rule is simple: "If the [defendant] honestly, albeit mistakenly, believes in the non-[retaliatory] reason it relied upon in making its . . . decision, then the [defendant] arguably lacks the necessary [retaliatory] intent." 155 F.3d at 806.

Defendants easily satisfy this standard, and Brown has produced no evidence to suggest otherwise. As indicated in Johnson's statement and in the misconduct charge itself, Brown's allegations of criminal embezzlement by prison officials were investigated by MDOC's Internal Affairs section and found to be without merit. ( See J.A. at 200, 204, 205.) This investigation and its findings provide the requisite "particularized facts" that render Defendants' stated belief "honestly held." To this day, there are no facts before us that would support a different conclusion.

Even as to Brown's broader and less inflammatory complaint that his prison account had been overcharged, the record reflects that prison officials conducted a diligent investigation of this complaint, but that this effort was made more difficult by Brown's frequent transfers from one facility to another, and by the apparent inability of staff at one prison to gain access to the financial records of another MDOC facility. Thus, even if the misconduct charge were construed as resting in part upon Defendants' belief that Brown's claims of overcharges, as well as his claims of embezzlement, were false, I would conclude that this belief, too, would be deemed "honestly held" under the facts available to Defendants at the time. "[W]e do not require that the decisional process used by the [defendant] be optimal or that it left no stone unturned," but rather inquire only "whether the [defendant] made a reasonably informed and considered decision before taking an adverse . . . action." Smith, 155 F.3d at 807. The record here, in my view, reveals a more than adequate investigation of Brown's overcharge complaint, particularly given the modest amount at issue.

Unfortunately, this unrefuted evidence of Defendants' permissible, non-retaliatory motive for charging Brown with misconduct plays no role in the majority's analysis of this case. Rather, based solely upon the outcome of the misconduct hearing, the majority moves swiftly and uncritically through the elements of the Thaddeus-X standard, coming within a hair's-breadth of awarding summary judgment in Brown's favor, and leaving me — and, no doubt, Defendants and the District Court as well — wondering what sort of additional proof Defendants could possibly offer to avoid this result on remand. The majority declares, for example, that "there was no misconduct" in this case, that Brown filed exclusively "nonfrivolous grievances," and that Brown actually believed that prison officials were embezzling his funds, ( see Majority Op. at 788), with all of these apparent "findings" derived solely from the report of the hearing officer. Yet, the majority fails to indicate whether Defendants should be permitted to contest any of these points on remand, or whether the statements in the hearing report should instead be accorded the status of irrefutable fact. Then, having effectively decreed that Brown was engaged in protected conduct, the majority suggests, if it does not outright hold, that Defendants' perception of what Brown was doing is legally irrelevant, and that a prisoner's exercise of what we deem after the fact to be "protected conduct" — a definition which apparently encompasses any use of "mere words," no matter how baseless or disruptive to the prison environment — precludes prison officials from taking any action against such conduct, regardless of their motive. Again, one wonders whether Defendants might still be permitted to produce evidence, beyond the unrefuted statements they already have offered, that they acted out of an honest, good-faith and well-founded belief that Brown had engaged in the misconduct with which he was charged.

The majority, in short, has reduced Thaddeus-X to a single-element test for the existence of protected conduct, with prison officials expected to be unerring First Amendment scholars as evaluated by the courts in hindsight, rather than their motives being assessed by what they actually said and believed at the time they acted. I am simply at a loss to understand why the majority deems it necessary to analyze a prisoner's First Amendment retaliation claim under a special set of standards wholly different from those we routinely apply in cases involving allegations of impermissible motive. Under these latter principles, which we have repeatedly stated and applied in our decisions, it is clear that Brown suffered no adverse effects whatsoever for the few short days that the misconduct charge was pending against him. In addition, Defendants have produced evidence that they charged Brown with misconduct for a permissible, non-retaliatory reason, and Brown has produced no evidence that this reason was pretextual, much less that the true reason was retaliatory. On these grounds, most of which were recognized by the Magistrate Judge in the very early days of this case, ( see July 30, 1999 Report and Recommendation at 18), we should affirm the District Court's award of summary judgment in Defendants' favor.

IV.

Defendants tell us that Michigan prisoners file thousands of grievances each year. It seems safe to assume that at least some of these are frivolous or outright false, and that substantial state resources are wasted in processing such complaints. Moreover, as we recognize the danger that a prison official might use a misconduct charge as a means of retaliating against an inmate, we surely must acknowledge that a prisoner, likewise, might lodge retaliatory charges against prison staff, with the result that personnel are diverted from their usual tasks to address these charges, at considerable expense to the taxpayers. It stands to reason, then, that prison officials must be given the tools to deter such complaints, including the authority to take disciplinary action against inmates who file them.

As judges, we surely must appreciate this. We have a panoply of tools at our disposal — Fed.R.Civ.P. 11 and 28 U.S.C. § 1915(e)(2)(B), to name just two — that enable us to quickly dispose of frivolous claims and sanction those who bring them. If a litigant believes we are wrong in taking such action, his sole recourse is to appeal. The judge-made doctrine of judicial immunity protects us from an award of damages, or even discovery on allegations of bad faith or malice. See Barrett v. Harrington, 130 F.3d 246, 254-55 (6th Cir. 1997), cert. denied, 523 U.S. 1075, 118 S.Ct. 1517, 140 L.Ed.2d 670 (1998).

If we enjoy such immunity in our rather rarefied setting, I think it only fair that we grant some degree of deference to prison officials who make similar determinations under much more trying and turbulent circumstances. The qualified immunity doctrine seeks to account for these circumstances, yet we inexplicably refuse to apply it in this case. Worse, the majority determines on the merits that an administrative reversal of a misconduct charge, standing alone, raises a triable issue of fact on any unlawful motive the prisoner might care to suggest as the basis for the charge. Under this rule, a prison official who believes that an inmate has filed a false complaint had better be right, and able to prove it to the satisfaction of an administrative hearing officer, on pain of discovery, trial, and exposure to a money judgment.

This would be bad policy, but is even more untenable as a rule of constitutional law. The facts of this case make this clear, where the majority has found that a trial is necessary to assess the veracity of the parties' respective beliefs that Brown's prison account was or was not overcharged by a few dollars. I believe that the majority's ruling fails, on a number of levels, to apply the proper standards for evaluating Brown's claim of First Amendment retaliation, and I accordingly dissent.