Opinion
Civil Action No. 3:97-CV-1274-D.
June 27, 2000.
MEMORANDUM OPINION AND ORDER
Following the Fifth Circuit's affirmance in Jones v. Greninger, 188 F.3d 322 (5th Cir. 1999) (per curiam), of this court's dismissal of plaintiff's claims against all but one defendant, the remaining defendant, Willie Roberts ("Roberts"), moves for summary judgment. For the reasons that follow, the court grants the motion.
Plaintiff James Stephen Jones ("Jones") is a prisoner at FCI-Seagoville, Texas. He alleges that he decided to pursue pro se the appeal of the denial of his motion for habeas corpus relief after he became dissatisfied with his retained counsel's efforts. Jones requested that his unit manager grant him time off from his prison employment so that he could prepare his appeal. He asserts that he became concerned that he would be unable to prevail on appeal without sufficient time to prepare his brief and obtain records from his former counsel. Jones sought permission to visit his unit manager to present his concerns. She was not available, but his case worker — dismissed defendant Yolanda Cornelius ("Cornelius") — was able to speak to him. Cornelius denied his request for time off to perform legal research.
After Jones unsuccessfully complained informally to the Associate Warden, he visited Roberts' office on May 14, 1997 to obtain a BP-10 (sensitive) form for the purpose of lodging a grievance against Cornelius. Roberts was Jones' counselor. When Roberts asked Jones why he wanted the form, Jones responded that it was urgent and sensitive in nature. Roberts gave Jones the BP-10, and he completed and filed it. Jones alleges that when he asked Roberts later on May 14, 1997 about his vacation, Roberts informed him that he was being reassigned from yard detail to Food Service and would be ineligible for vacation for one year. Jones sued Roberts and three other defendants on claims arising from this and related matters.
The court dismissed Jones' lawsuit against all defendants except Roberts and entered a Fed.R.Civ.P. 54(b) final judgment. The court declined to dismiss Jones' action against Roberts. Jones appealed and the Fifth Circuit affirmed. Although the decision addressed the defendants whom the court had dismissed, the circuit court stated the following dicta in a footnote:
In the light of this holding, it appears that Jones's retaliation claim against Roberts, alleging interference with his right of access to the court, also fails to state a valid constitutional claim. Roberts has not filed a notice of appeal, however. Thus, this court is without appellate jurisdiction to address Jones's claim against Roberts in this respect.Id. at 326 n. 2. The panel remanded the case for further proceedings because "Jones's single retaliation claim against Roberts" remained to be adjudicated. Id. at 327.
Following issuance of the mandate, and in light of this dicta, Roberts moved this court to reconsider its earlier denial of his motion to dismiss. The court referred the motion to the magistrate judge, who recommended that the court grant the motion and dismiss Jones' claim in its entirety. The court in part adopted the recommendation, in part re-referred the motion to the magistrate judge, and eventually granted in part and denied in part the motion to reconsider. The court agreed with Roberts that the Fifth Circuit's opinion barred Jones' retaliation claim based on the denial of his constitutional right of access to the court. Feb. 7, 2000 Order at 2, 4 (adopting in part January 3, 2000 findings, conclusions, and recommendation of magistrate judge). The court declined, however, to hold that Jones' retaliation claim was governed entirely by the dicta in Jones.
Jones maintained in his objections that the magistrate judge had failed to address the contention in ¶ 53(B) of his amended complaint that Roberts had retaliated against him by reassigning him to Food Service when Jones filed the BP-10 grievance. Jones emphasized that this claim was different from the one advanced in ¶ 53(A). He argued that ¶ 53(A) alleged that Roberts had violated his right of access to the court when he retaliated against him. Jones posited that in ¶ 53(B), he asserted that Roberts had violated his First Amendment right to petition for redress of grievances. The court held that because Roberts' motion for reconsideration pertained to his earlier-filed motion to dismiss, the court must evaluate Jones' amended complaint under the standards that applied to such a motion. Feb. 7, 2000 Order at 3. The court was required to accept all well-pleaded facts as true and view them in the light most favorable to Jones, and should not dismiss the claim unless Jones would not be entitled to relief under any set of facts or any possible theory that he could prove consistent with the allegations in the amended complaint. Id. (citing Jones, 188 F.3d at 324). The court concluded that, so interpreted, it was arguable that the claim that Jones advanced in ¶ 53(B) was distinct from the one asserted in ¶ 53(A). The court also found it conceivable that the Fifth Circuit's statement in footnote 2 of Jones, and its reasoning in the entire opinion, did not foreclose Jones from maintaining such a claim. Id.
The court stated:
Footnote 2 explicitly refers to "Jones's retaliation claim against Roberts, alleging interference with his right of access to the court." Jones, 188 F.3d at 326 n. 2 (emphasis added). Paragraph 53(B), however, may allege a retaliation claim based on a violation of Jones' right to file a grievance rather than on his right of access to the court. And the reasoning of Jones is based on the fact that Jones could not allege a sufficient factual predicate for a denial of his right of access, which is essential to his retaliation claim. See id. at 325-26. But in ¶ 53(B), Jones may be relying on a different First Amendment right, the right to petition, which the Jones panel did not have occasion to address and which various circuits recognize is a right accorded prisoners. See, e.g., Dixon v. Brown, 38 F.3d 379 (8th Cir. 1994) (holding that retaliating against prisoner for filing grievance is actionable).Id.
Roberts now moves for summary judgment dismissing Jones' remaining retaliation claim.
Roberts also contends that he is entitled to qualified immunity and that Jones must exhaust his administrative remedies. The court need not reach at this time the defense of qualified immunity. Concerning the issue of exhaustion of administrative remedies, although this position may later prove to be well taken, the Fifth Circuit has yet to reconsider its earlier decision in Whitley v. Hunt, 158 F.3d 882 (5th Cir. 1998), although a panel has urged the en banc court to do so, see Wright v. Hollingsworth, 201 F.3d 663, 666 (5th Cir. 2000). Applying Whitley, the court is unable to require exhaustion where, as here, plaintiff seeks monetary damages. See P. Aff. at ¶ 4. Roberts also contends that Jones cannot prove retaliation based on his transfer to a unit to which he did not desire to be assigned. As the court explains below, see infra § III, this is not a retaliation claim that remains in the case and the court need not address it.
II A
Roberts moves for summary judgment dismissing Jones' claim that Roberts transferred him to Food Service in retaliation for filing the BP-10 grievance. Roberts has thus pointed the court to an absence of evidence supporting Jones' retaliation claim. See Br. at 6 (asserting that "Plaintiff's allegations in his first and amended complaints do not demonstrate that Roberts violated any of his constitutional rights.").Because Roberts will not have the burden at trial concerning the retaliation claim, he can meet his summary judgment obligation by pointing the court to the absence of evidence to support it. See Celotex Corp. v. Catreti, 477 U.S. 317, 325 (1986). Jones must then go beyond his pleadings and designate specific facts showing that there is a genuine issue for trial. See id. at 324; Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (per curiam). An issue of fact is genuine if the evidence supporting its resolution in favor of the party opposing summary judgment, together with any inference in that party's favor that the evidence allows, would be sufficient to support a verdict in the party's favor. Hilton v. Southwestern Bell Tel. Co., 936 F.2d 823, 827 (5th Cir. 1991) (per curiam). An issue of fact is not genuine if no reasonable trier of fact could find in favor of the nonmovant. Lavespere v. Niagara Mach Tool Works, Inc., 910 F.2d 167, 178 (5th Cir. 1990). Jones must produce evidence sufficient to establish the existence of all elements essential to his claim. See Anderson v. Libery Lobby, Inc., 477 U.S. 242, 249-50 (1986). Summary judgment is mandatory where the nonmoving party fails to meet his burden. Little, 37 F.3d at 1076. Unsworn assertions set out in a complaint or brief do not constitute summary judgment evidence. "Unsworn pleadings, memoranda, or the like are not, of course, competent summary judgment evidence." Larry v. White, 929 F.2d 206, 211 n. 12 (5th Cir. 1991).
B
To prove his retaliation claim, Jones must establish (1) a specific constitutional right, (2) the defendant's intent to retaliate against the prisoner for the exercise of that right, (3) a retalitory adverse act, and (4) causation. See Jones, 188 F.3d at 324-25 (stating what plaintiff must allege). Because Jones must adduce evidence sufficient to support a verdict on all essentials element of his claim, see Dunn v. State Farm Fire Cas. Co., 927 F.2d 869, 872 (5th Cir. 1991), the court need only address the elements of intent to retaliate and causation.
To raise a genuine issue of material fact concerning intent to retaliate and causation, Jones relies on (1) the timing of his placement in Food Service, and (2) evidence that he contends refutes Roberts' proffered reason of institutional need for the transfer and Roberts' statement that he was unaware that Jones had filed a grievance at the time he assigned him to Food Service. The court holds that a reasonable jury could not find on either basis that Jones has proved intent to discriminate or causation.
The mere temporal connection between Jones' filing of a BP-10 grievance and his reassignment to Food Service is inadequate in this case to raise a genuine issue of material fact. Jones alleges, based on the fact that he was placed in Food Service the same day he filed the BP-10, that "[o]ne can easily infer that Defendant Roberts retaliated against Plaintiff." P. Br. at 4. But such an inference would be unreasonable if Roberts had no reason or motive to retaliate. Roberts was not the subject of the BP-10. There is no record evidence that he thought the grievance had been filed against him personally or that he had any particular reason even to care that Jones had filed a grievance against another prison employee (particularly Cornelius, the subject of the complaint). According to the allegations of Jones' complaint (which, as noted, are not competent summary judgment evidence), Jones requested the form, Roberts inquired why he wanted it, and Jones told him it was urgent and sensitive. Apparently, no words were exchanged that would have identified whose conduct Jones was grieving. A reasonable jury could not find, therefore, that Roberts acted with intent to retaliate or that there is a causal link between the filing of the grievance and the transfer to Food Service.
Concerning Roberts' explanation that the transfer was based on institutional need and his statement that he was unaware that Jones had filed a grievance at the time he assigned him to Food Service, Jones advances several challenges in his unsworn brief; but the admissible summary judgment evidence does not present a genuine fact issue. Jones' 46-paragraph affidavit — his only sworn evidence — does not contain facts that relate specifically to these matters and that raise a genuine issue of material fact. The other documents attached as exhibits, even if admissible, do not raise a genuine issue of material fact without an explanation of why they have significance regarding the retaliation claim. Since this reasoning is set forth only in the form of unsworn assertions in Jones' brief, see, e.g., P. Br. at 5-6, the exhibits are inadequate to oppose summary judgment.
The court therefore grants summary judgment dismissing Jones' remaining retaliation claim.
III
Roberts appears to move for summary judgment dismissing a retaliation claim based on Jones' complaint about being assigned to Unit 7 despite his concerns about a safety threat posed by other inmates. See D. Br. at 7 (contending that Jones did not have protectable interest in assignment to particular unit). The court need not reach this ground of Roberts' motion because no such claim remains at this stage of the case.
When the court adopted the magistrate judge's recommendation on February 7, 2000, it dismissed Jones' retaliation claim in all respects except insofar as he alleged retaliation based on the transfer to Food Service. Feb. 7, 2000 Order at 2. The magistrate judge's February 28, 2000 recommendation, and the court's March 23, 2000 order adopting it, pertain to the retaliation claim in ¶ 53(B) of Jones' amended complaint. See Feb. 7, 2000 Order at 2-4; Feb. 28, 2000 Mag. Rec. at 1.
Moreover, to the extent Jones bases a claim on his assignment to Unit 7, it is not a retaliation claim. This cause of action can be found in ¶ 53(C) of the amended complaint, in which Jones asserts that "Defendant Roberts transferred the Plaintiff to unit 7 when Defendant Roberts knew there [were] problems for Plaintiff, in doing so[.]" Am. Compl. ¶ 53(C). It appears that Jones is now simply attempting to recast his dismissed deliberate indifference Eighth Amendment claim, see Jones, 188 F.3d at 326, as a retaliation cause of action.
Additionally, Jones has not adduced in his affidavit evidence that Roberts assigned him to Unit 7 as an act of retaliation. The proof concerns Roberts' knowledge of a history of threats posed to Jones by other inmates, including one assigned to Unit 7, not evidence that would permit a reasonable trier of fact to find that Roberts assigned Jones to that unit to retaliate for his having engaged in any protected conduct.
* * *
The court grants Roberts' motion for summary judgment.SO ORDERED.