Opinion
No. 95-1837.
Argued December 5, 1996.
Decided and Filed April 11, 1997. Pursuant to Sixth Circuit Rule 24
Thaddeus-X (briefed), Jackson, MI, Pro Se.
Paul D. Reingold (argued and briefed), Michigan Clinical Law Program, Ann Arbor, MI, for Thaddeus-X and Earnest Bell.
Earnest Bell, Jr., Jackson, MI, Prose.
Landis Y. Lain (briefed), Susan Przekop Shaw (argued), Office of the Attorney General, Corrections Division, Lansing, MI, for Blatter.
On Appeal from the United States District Court for the Eastern District of Michigan.
Before: ENGEL, MERRITT, and MOORE, Circuit Judges.
MOORE, J., delivered the opinion of the court, in which ENGEL, J., joined.
MERRITT, J., concurred only in the judgment.
Plaintiffs-Appellants Earnest Bell and Thaddeus X, proceeding pro se, brought this civil rights suit in the United States District Court for the Eastern District of Michigan claiming that prison officials had retaliated against them for litigating a separate civil rights action on behalf of plaintiff Bell. Defendants filed a motion to dismiss for failure to state a claim, Fed.R.Civ.P. 12(b)(6), or, in the alternative, for summary judgment under Fed.R.Civ.P. 56. The magistrate judge who initially heard the case denied in part and granted in part defendants' motion. The district court, however, granted the motion in full under Rule 56. Plaintiffs filed a timely appeal. For the reasons stated below, we reverse in part and remand for further proceedings.
I. FACTS
Plaintiffs make the following allegations in their verified complaint and affidavits:
Allegations in a verified complaint have, for summary judgment purposes, the same force as those in an affidavit. Lavado v. Keohane, 992 F.2d 601, 605 (6th Cir. 1993).
At the time they filed this action plaintiffs-appellants were inmates, and defendants-appellees were guards and officials, at the State Prison of Southern Michigan at Jackson, Michigan. On April 20, 1994, plaintiffs X and Bell executed a "Legal Assistance Request and Agreement," pursuant to Policy Directive PD-DWA-61.01 and approved by a prison official, stating that X would "help [Bell] with any [and] all legal concerns." J.A. at 15 (Complaint Para(s) 9); Dist. Ct. Docket # 4 (copy of agreement). For the next month, X discussed legal matters with Bell and other prisoners on a daily basis and helped Bell file a lawsuit against prison officials. J.A. at 15 (Complaint Para(s) 10-12). Defendant Karazim passed legal materials between the two inmates during this time. Id. at 68 (X Affidavit Para(s) 5).
Although the parties do not explicitly so state, it appears that defendant Karazim works in the part of the prison where X was housed prior to June 8 and where Bell was housed at all relevant times. Defendants Bildner, Binder, and Sparks apparently work "on base," and Blatter works in both sections of the prison.
Although another policy directive, captioned No. 05.03.116 and issued before PD-DWA-61.01 was to go into effect on February 19, 1991, purports to supercede the earlier directive, plaintiffs' approved agreement form CAJ-337 cites PD-DWA-61.01 as the controlling regulation. The discrepancy is immaterial to our opinion.
On May 23, 1994, defendant Karazim told X to stop giving legal advice to Bell and other prisoners, even after X showed him his approved legal agreement with Bell. Id. at 15-16 (Complaint Para(s) 12-13). Between that day and June 8 Karazim refused to pass legal materials from X to Bell and refused to give either plaintiff paper or pens. Id. at 16 (Complaint Para(s) 14). On June 7, X complained in writing to a case worker that defendants were refusing to give him paper and pens which he needed for legal research. Id. at 69 (X Affidavit Para(s) 15).
On June 8, 1994, Karazim told plaintiff that "he [and] his friends w[ere] going to come in plaintiff's cell [and] f_ck [him], because of the lawsuit" X had helped Bell to file. Id. at 17 (Complaint Para(s) 17). That same day defendant Blatter told X that he was being moved "on base," i.e., to the lowest floor of the administrative segregation area, for filing too many lawsuits and administrative grievances. Id. (Complaint Para(s) 18). X was then moved on base, to the section of the prison which is used to house mentally ill patients. Id. (Complaint Para(s) 19); id. at 70-71 (X Affidavit Para(s) 24, 25, 27).
The magistrate judge's report and recommendation states that plaintiffs submitted another prisoner's affidavit stating that he had heard Blatter tell X he was being moved for filing too many lawsuits. J.A. at 89.
The complaint also alleges that after June 8 defendants Graham, Bildner, and Sparks refused to pass legal materials between Bell and X, id. at 17-18 (Complaint Para(s) 20-22) and refused to provide them with pens or paper, id. at 18-19 (Complaint Para(s) 22, 25). Defendant Karazim also allegedly began bringing Bell cold food and told him that he had been assigned to harass him; he said that this treatment would continue as long as Bell maintained his suit against the warden. Id. (Complaint Para(s) 23-24). Plaintiffs further allege that defendants Graham and Bildner repeatedly told X that he was put on base, and specifically next to an inmate who refuses to wash, to punish him for filing lawsuits, and that "no one [could] stop them [from] punishing" him. Id. at 19 (Complaint Para(s) 26, 28). X also quotes them as telling him "now see how well you can con[cen]trate on your legal work with all the sh_t and noi[s]e down here, it's people like you that stressed-out our buddy Sgt. Garrison. A few months down here will stress you out [and] you won't be able to file no lawsuits." Id. (Complaint Para(s) 27).
Plaintiff X also describes the conditions of his confinement on base, as we discuss below in Part III. C.
Defendant Blatter presented an affidavit stating that X had been moved on base for "Department rule violations" at the request of one Deputy Tamminga, that X had been assigned to the only available cell on base, and denying that he had ever told X he was being moved to punish him or retaliate against him. Id. at 54-55 (Blatter Affidavit Para(s) 4, 5, 7, 12). Blatter also stated that it was the job of the prison case managers or counselors to pass legal materials between inmates. Id. at 53 (Blatter affidavit Para(s) 3).
Defendant Karazim avers that he gave X pens and paper on request and that Bell never asked him to give X legal materials. Id. at 57-58 (Karazim Affidavit Para(s) 6, 21, 22). He denies that he ever told X to stop giving legal advice, that he threatened X for helping Bell file a lawsuit, and that X ever showed him his legal assistance agreement with Bell. Id. at 57 (Para(s) 4, 5, 17). He further avers that he only gave Bell cold meals when the menu called for cold food and that he never told Bell he was assigned to harass him for suing prison employees. Id. at 58 (Karazim Affidavit Para(s) 23, 24).
Defendant Graham denies making any incriminating statements and disclaims any authority over where X was moved. Id. at 59-61 (Graham Affidavit). Defendant Bildner similarly denies any improper conduct. Id. at 62-64 (Bildner Affidavit). Graham and Bildner both disclaim any knowledge of a legal assistance agreement between the two plaintiffs. Id. at 60 (Graham Affidavit Para(s) 4); id. at 62 (Bildner Affidavit Para(s) 3). None of the defendants specified what violations X had committed which warranted his being moved on base. No evidence other than these affidavits was introduced to show that Tamminga had, in fact, ordered X moved.
II. STANDARDS FOR GRANTING AND REVIEWING SUMMARY JUDGMENT
We review a grant of summary judgment de novo. Johnson v. United States Postal Service, 64 F.3d 233, 236 (6th Cir. 1995). The party seeking summary judgment has the initial burden of showing that there is no genuine issue as to any material fact. Id. We will reverse a grant of summary judgment if the nonmoving party has presented evidence of specific facts which, viewed in the most favorable light, indicates that there is a genuine issue for trial. Id. Summary judgment is appropriate "if the pleadings . . . and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The court is not to weigh evidence in making this decision; summary judgment "will not lie . . . if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
III. DISCUSSION [14] A. Retaliation against Plaintiff X [15] 1. The Constitutional Right at Issue
Plaintiff X claims that prison officials retaliated against him for assisting plaintiff Bell with a lawsuit against the warden. Retaliation against an inmate for exercising his constitutional rights is itself a violation of the Constitution. See Zilich v. Longo, 34 F.3d 359, 364 (6th Cir. 1994), cert. denied, 115 S.Ct. 1400 (1995); Gibbs v. Hopkins, 10 F.3d 373, 378 (6th Cir. 1993).
It is well established that prisoners have a constitutional right of access to the courts. Lewis v. Casey, ___ U.S. ___, 116 S.Ct. 2174, 2179 (1996). See, e.g., Wolff v. McDonnell, 418 U.S. 539, 577-80 (1974); Johnson v. Avery, 393 U.S. 483, 488-90 (1969); Ex parte Hull, 312 U.S. 546, 549 (1941); John L. v. Adams, 969 F.2d 228, 231-32 (6th Cir. 1992) (right of access grounded in First and Fourteenth Amendments). This right may imply a right to assistance from other prisoners in researching and drafting habeas corpus petitions or legal documents in Section(s) 1983 cases where such assistance is necessary to vindicate the right of access. Wolff, 418 U.S. at 579-80; Avery, 393 U.S. at 490. It is, however, clear in this circuit that an inmate does not have an independent right to help other prisoners with their legal claims. Gibbs, 10 F.3d at 378. Rather, a "jailhouse lawyer's" right to assist another prisoner is wholly derivative of that prisoner's right of access to the courts; prison officials may prohibit or limit jailhouse lawyering unless doing so interferes with an inmate's ability to present his grievances to a court. Id. ("[W]hile there is technically no independent right to assist, prison officials may not prevent such assistance or retaliate for providing such assistance where no reasonable alternatives are available."). Thus, plaintiff X can state a claim of retaliation only if his assistance is necessary to vindicate plaintiff Bell's right of access to the courts. We believe that the facts alleged demonstrate such a necessity.
Plaintiff Bell avers "[t]hat M.D.O.C. Prison [L]egal Services do not write out motions for prisoners, jailhouse lawyers are not allowed to come over to Adm[inistrative] Seg[regation] and Plaintiff has no knowledge of law and presently is not around any prisoners who do have knowledge in law." Bell Affidavit of 12/5/94 Para(s) 12 [hereinafter "Bell Affidavit"]. He also states that, when he was prohibited from communicating with X, he "was unable to respond" to a magistrate judge's report and recommendation in a case which X had originally filed for him. Id. Para(s) 11. The complaint, too, suggests that Bell would be unable to access the court in any meaningful way absent plaintiff X's assistance. See J.A. at 23 (Complaint Para(s) 46) ("Plaintiff Bell cannot receive the proper legal advice because the law [librarians are not] trained in any type of law nor do they have any degrees in law."). In light of the liberal reading accorded inmates' pro se pleadings, see Estelle v. Gamble, 429 U.S. 97, 106 (1976), this adequately alleges that Bell requires plaintiff X's assistance if he is to have meaningful access to the courts. Cf. Gibbs, 10 F.3d at 379-80 (allowing inmate to amend complaint to allege that there were no reasonable alternatives for access to courts other than jailhouse lawyers).
Defendants argue that, whatever plaintiffs allege, a reasonably complete prison law library such as the one at Jackson constitutes an adequate alternative as a matter of law. The Supreme Court has as recently as last year, however, rejected this argument: just as prisoners do not have a right to a well-stocked law library except to the extent that one is necessary to provide them access to the courts, access to law books does not necessarily suffice to ensure that uneducated or non-English-speaking inmates have "a reasonably adequate opportunity to file nonfrivolous legal claims challenging their convictions or conditions of confinement." Lewis, 116 S.Ct. at 2182. See Wolff, 418 U.S. at 579-80 (remanding for district court to determine constitutionality of prison regulation which prevented inmates from giving legal assistance to other prisoners, even though the parties had agreed that the library was itself adequate, McDonnell v. Wolff, 342 F. Supp. 616, 618 (D. Neb. 1972)). This court, too, has noted in another case involving the Michigan prison at Jackson that the Supreme Court has "require[d] that inmates be provided the legal assistance of persons with at least some training in the law," at least "[t]o the extent that inmate writ-writers, or jailhouse lawyers, are not adequately filling the needs of prisoners." Knop v. Johnson, 977 F.2d 996, 1006 (6th Cir. 1992) (citation omitted), cert. denied, 507 U.S. 973 (1993). This case may therefore go forward despite the existence of the library unless the state has demonstrated that it has provided Bell with what he needs to have meaningful access to the courts. See Gluth v. Kangas, 951 F.2d 1504, 1508 (9th Cir. 1991) ("It is the state's burden to provide meaningful access and to demonstrate that its chosen method is adequate.") (citation omitted); Sostre v. McGinnis, 442 F.2d 178, 201 (2d Cir. 1971) (en banc) ("[S]tates must permit prisoners to help fellow inmates prepare habeas corpus petitions, subject to reasonable regulation, absent a sufficient showing by the state that through some other means it provides prisoners with an adequate substitute for the `jailhouse lawyer.'") (citations omitted), cert. denied, 404 U.S. 1049, cert. denied, 405 U.S. 978 (1972).
The state has not provided any indication that it provides meaningful legal assistance to prisoners aside from the actual law books. According to the complaint, the law librarians at Jackson are such in name only: they have no legal training and do no more than bring requested books to prisoners. See J.A. at 23 (Complaint Para(s) 46); Knop, 977 F.2d at 1006 (noting that district court found that "librarians at Jackson's North and South Complexes were not competent to perform legal research [and] inmates hired there as law clerks were not allowed to assist other inmates in their legal research"; similar findings were made regarding Central Complex). There is no indication that the state Prison Legal Services has been able to provide Bell with any help. Thus, summary judgment for defendants would be appropriate only if the access to law books provided to Bell allows him meaningful access to the courts.
Although Michigan is not a party to this litigation, the state Attorney General's office is defending the case.
Bell has not alleged that he does not speak English or that he is illiterate. Nonetheless, the pleadings and affidavits filed suggest that, without assistance, he would be unable to assert his legal claims. He states that he is wholly ignorant of the law. Bell Affidavit Para(s) 12. It is no easy task for a layman to determine what facts are material to a particular legal claim, or to navigate the procedural requirements of filing a civil suit. See Bounds v. Smith, 430 U.S. 817, 825 (1977) ("[A] lawyer must know what the law is in order to determine whether a colorable claim exists, and if so, what facts are necessary to state a cause of action."). Furthermore, because Bell was in administrative segregation during the relevant time, he could only access the library by requesting books by title. See Knop, 977 F.2d at 1005-06 ("Standing alone, law libraries that are adequate for prisoners who know how to use them and who have reasonable physical access to their collections are not adequate for prisoners who . . . lack the intelligence necessary to prepare coherent pleadings, or who, because of protracted confinement in administrative or punitive segregation or protective custody, may not be able to identify the books they need."); John L. v. Adams, 969 F.2d 228, 234 n. 6 (6th Cir. 1992). In light of our previous statements that some sort of legal assistance is often necessary to provide unschooled inmates with adequate access to the courts, we conclude that Bell's allegations that he needs some sort of legal assistance to effectuate his right of access to the courts are sufficient to allow X's retaliation claim to withstand summary judgment.
Plaintiff X additionally claims that at least some of the alleged retaliation is a result of his helping inmates besides Bell, some of whom may be illiterate. See J.A. at 15-16 (Complaint Para(s) 11, 12); id. at 17 (Complaint Para(s) 18). Thus, even if we were to conclude that the library provided Bell with a reasonable alternative, X's claims could likely still withstand summary judgment. Also, X claims that he was moved for filing grievances, id. at 17 (Complaint Para(s) 18); id. at 69 (X Affidavit Para(s) 17), and mentions that he filed at least one complaint on his own behalf, id. at 69 (X Affidavit Para(s) 15).
2. Injury
In the usual claim alleging denial of access to the courts, an inmate claims that the lack of legal assistance made it impossible for him to file a legal claim. He thus can be required to show actual prejudice, i.e., that the shortcoming actually prevented him from taking some meritorious legal action. Lewis v. Casey, 116 S.Ct. 2174, 2179-80 (1996); Walker v. Mintzes, 771 F.2d 920, 932 (6th Cir. 1985). Without this actual injury, the plaintiff has no Article III standing. Lewis, 116 S.Ct. at 2179 n. 1. The heart of a retaliation claim, on the other hand, is that a harm would have occurred but for some action which the plaintiff took and that he is suffering adverse consequences as a result of his action. Thus, the only actual injury which must be shown is that which flows from the retaliation.
An example from Lewis shows why this is so. The Court wrote that it would be improper for a court to allow "a healthy inmate who had suffered no deprivation of needed medical treatment . . . to claim violation of his constitutional right to medical care," because the courts have the responsibility, and the authority, only to ensure that ill prisoners receive adequate medical care, not to manage prison medical facilities. Id. at 2179. See id. ("It is the role of courts to provide relief to claimants, in individual or class actions, who have suffered, or will imminently suffer, actual harm . . . ."). An inmate who cannot make this showing has no standing to assert a claim in federal court. Id. at 2179 n. 1. An inmate who claimed, however, that the prison had retaliated against him after he had successfully obtained medical care would have to show only that he needed that care, not that he was harmed by that care. Similarly, a plaintiff claiming that prison authorities have retaliated against him for helping another inmate with legal work need not show that the retaliation caused him to miss a filing deadline, but only that the retaliation occurred because he provided necessary legal assistance.
This holding does not imply that the states have any affirmative duty, other than that recognized in prior cases, to provide legal assistance to inmates without a showing that the lack thereof has caused an inmate actual prejudice. Similarly, a prisoner challenging a regulation prohibiting assistance from jailhouse lawyers would have to show actual prejudice. See Part III. D, infra.
This result additionally falls squarely within the Court's holding in Johnson v. Avery, 393 U.S. 483 (1969). In that case, too, the inmate alleged that he had been transferred to a less-desirable cell in retaliation for his assisting other prisoners with legal work. Id. at 484. There was no evidence that any inmate had suffered actual prejudice as a result of being denied Johnson's legal assistance. Lewis cites Avery as supporting the correct approach as to this issue. See, e.g., 116 S.Ct. at 2179 ("In the cases to which Bounds [v. Smith, 430 U.S. 817 (1977),] traced its roots, we had protected that right by prohibiting State prison officials from actively interfering with inmates' attempts to prepare legal documents . . . .") (citing, inter alia, Avery). Nor have other circuits imposed such a requirement in retaliation cases. See Bernheim v. Litt, 79 F.3d 318, 324 (2d Cir. 1996) ("To establish a retaliation claim under Section 1983, a plaintiff initially must show that his conduct was protected by the first amendment, and that defendants' conduct was motivated by or substantially caused by his exercise of free speech.") (citations and internal punctuation omitted). Compare Howland v. Kilquist, 833 F.2d 639, 642 (7th Cir. 1987) (Seventh Circuit has "consistently found" that prisoners must show prejudice to establish denial of access to courts.) with id. at 644 (affirming dismissal of retaliation claim without discussing prejudice) and Murphy v. Lane, 833 F.2d 106, 108-09 (7th Cir. 1987) (per curiam) (allowing prisoner's claim of retaliation for filing lawsuits to go forward without discussing any prejudice requirement).
Finally, allowing a suit for retaliation to lie without Lewis's showing of actual injury does not discourage the local experimentation as to how best to provide access to the courts. See Lewis, 116 S.Ct. at 2180-81. Such cases will by definition arise only when the prison allows inmates to use a certain procedure and then punishes them for doing so: our holding therefore in no way restricts a state's choice of methods as to how to provide access. As noted above, Michigan has chosen to allow inmates to make formal agreements to help one another with legal work. Plaintiffs do not claim that the restrictions which the state imposes on such agreements are unconstitutional. They claim, rather, that certain prison officials retaliated against them for doing what prison regulations permit and the Constitution protects. States are free to experiment with different plans for providing prisoners with efficient and effective access to the courts; they may not retaliate against inmates for acting pursuant to those plans.
The state contends that Montanye v. Haymes, 427 U.S. 236 (1976), and Ward v. Dyke, 58 F.3d 271 (6th Cir.), cert. denied, 116 S.Ct. 524 (1995), support the holding below. We disagree. Although the plaintiff in Montanye raised a retaliation claim, neither the Second Circuit's decision below nor the Supreme Court's opinion addressed it. Instead, they inquired only whether an inmate alleged to have violated a prison rule could contest his transfer to another prison in which he could originally have been incarcerated. See Montanye, 427 U.S. at 242-43; id. at 244 (Stevens, J., dissenting) (noting that under the majority's holding, plaintiff should be accorded "a trial of his claim that the transfer was made in retribution for his exercise of protected rights"); United States ex rel. Haymes v. Montanye, 505 F.2d 977 (2d Cir. 1974). See also Olim v. Wakinekona, 461 U.S. 238, 248 n. 9 (1983) (citing, inter alia, Justice Stevens's Montanye dissent for proposition that transfers are proper "unless there is state law to the contrary or the reason for confining the inmate in a particular institution is itself constitutionally impermissible"). On remand the Second Circuit ordered a trial on the issue. Haymes v. Montanye, 547 F.2d 188, 189 (2d Cir. 1976) ("We now deal with those issues which it was not necessary to reach in our previous decision. We hold that there are genuine issues of material fact as to whether Haymes' transfer violated either his first amendment rights or his federally protected right to help prisoners prepare habeas corpus petitions."), cert. denied, 431 U.S. 967 (1977).
The state's reliance on Ward is also misplaced. The prisoner in that case had filed 115 administrative grievances and several lawsuits, and had received two major misconduct tickets, all in the space of five months. 58 F.3d at 272. This court concluded that transferring an inmate to another prison "in part to give prison staff a respite from his continuous barrage of grievances . . . is not impermissible," because the transfer allowed the state to reduce tension in the prison "without discouraging [the inmate] from seeking redress of his grievances." Id. at 274. See id. (noting that Ward did not dispute that "the sheer volume of [his] complaints interfered with prison administration").
In this case there is no evidence, and the state does not argue, that plaintiff X has subjected prison workers to any such barrage of suits and grievances. Nor have defendants claimed that either plaintiff was ever engaged in any misconduct other than X's "minor misconduct" of hanging a hanging a blanket in his cell window. See J.A. at 63 (Bildner Affidavit Para(s) 9). Finally, there is no evidence that X or Bell presents any threat to inmates or staff, as Ward apparently did. Id. at 274-75 ("[T]he prison authorities were justified in concluding that Ward's behavior during his five months at [the prison] evidenced his discontentment with the facilities, staff, and fellow inmates [there]. Ward's failure to adjust was detrimental to himself and also posed a potential threat to other inmates and the staff."). There is, instead, direct evidence that defendants' treatment of plaintiffs was intended to discourage them from continuing to exercise their rights to seek redress for grievances. Ward is irrelevant and inapposite.
3. Retaliatory Intent and Agency
Plaintiff X has presented ample evidence that he was moved on base in retaliation for his helping Bell and other inmates with legal matters. He has not, however, contradicted Blatter's sworn statement that he was moved at the direction of a deputy Tamminga and that Blatter showed X a letter to that effect. See J.A. at 54 (Blatter Affidavit Para(s) 4, 5). There is a question, then, of whether plaintiffs have brought suit against the correct persons.
Karazim is properly a defendant. X avers that Karazim told him that "he was going to make sure that plaintiff [was] moved off the floor." Id. at 16 (Complaint Para(s) 15). Read in the light most favorable to X, this indicates that Karazim played some part in the decision to move X.
The question of whether the rest of the appellees are liable for X's being moved on base is less straightforward. If deputy Tamminga ordered X to be moved, then Graham, Bildner, and Blatter may merely have been executing their superior's orders. See J.A. at 54 (Blatter Affidavit Para(s) 4); id. at 70 (X Affidavit Para(s) 21) (identifying guards who placed him in new cell). The district court believed that this absolved these defendants of liability for their participation in the transfer. Id. at 149 (Dist.Ct. Op. at 13). We do not agree. Although a reliance on a superior's orders might be relevant to a defense of qualified immunity, it does not in itself absolve the defendants from liability for their actions. Raysor v. Port Authority, 768 F.2d 34, 38 (2d Cir. 1985) (holding police officer liable for false arrest under Section(s) 1983 even though arrest was made at superior's order), cert. denied, 475 U.S. 1027 (1986); Villanueva v. George, 659 F.2d 851, 855 (8th Cir. 1981) (en banc) (rejecting prison officers' argument that "since they did not have the authority to alter the [prisoner's security] classification, any consequence of that status cannot be their responsibility"); Forsyth v. Kleindienst, 599 F.2d 1203, 1216-17 (3d Cir. 1979) (rejecting FBI agents' argument that "they were merely following the orders of their superior and should not be put to the test of either disobeying authority or being subject to liability" because "if they knew or should have known that their actions were violating the plaintiffs' constitutional rights, then they will not be allowed to hide behind the cloak of institutional loyalty"), cert. denied, 453 U.S. 913 (1981). This result accords with longstanding general and specific tort principles. See Restatement (Second) of Agency Section(s) 343 cmt. d (1958) ("[D]eputy sheriffs who take part in an unlawful arrest . . . are subject to liability together with those for whom they act, except where their good faith creates a privilege in them to act.") (citation omitted). Cf. A M Records, Inc., v. M.V.C. Distributing Corp., 574 F.2d 312, 315 (6th Cir. 1978) ("It is well established that a corporate officer or agent is personally liable for torts committed by him even though he was acting for the benefit of the corporation.") (construing Michigan law) (citations omitted); 1 W. Blackstone, Commentaries *429-*30 (1899) ("[I]f the servant commit a trespass by the command or encouragement of his master, the master shall be guilty of it: though the servant is not thereby excused, for he is only to obey his master in matters that are honest and lawful.").
Although in some such cases "the act of [an] agent may play too small a part to render him legally responsible for the result," Restatement (Second) of Agency Section(s) 343 cmt. d, we cannot say from the evidence before us that this is such a case.
This result also flows from our decisions holding that prison guards have a responsibility to protect prisoners from attacks by other prison officials. See McHenry v. Chadwick, 896 F.2d 184, 188 (6th Cir. 1990) ("[A] correctional officer who observes an unlawful beating may, nevertheless, be held liable under Section(s) 1983 without actively participating in the unlawful beating.") (citation omitted). It would be anomalous to hold liable officers who witness, but do not participate in, a violation, but to excuse a guard who actively participates in the violation.
We addressed a similar situation in Glasson v. City of Louisville, 518 F.2d 899 (6th Cir.), cert. denied, 423 U.S. 930 (1975). In preparation for a visit by then-President Nixon, the city police chief had ordered his officers, including defendants Johnson and Medley, "to destroy any sign or poster that was `detrimental' or `injurious' to the President." Id. at 901. Plaintiff Glasson brought a poster to the presidential motorcade route which the officers thought to be within the scope of their chief's orders; they therefore took the poster and destroyed it. Id. at 902. Glasson sued, inter alia, the two officers. The district court dismissed Glasson's suit; reversing, we held both officers liable for violating Glasson's constitutional rights because they could not make out what would later become known as a qualified-immunity defense. Id. at 903-04 ("We hold that when Officer Medley destroyed Miss Glasson's poster, she was engaged in activity protected by the First and Fourteenth Amendments; that his action, directed by Officer Johnson and authorized by Chief of Police Hyde, was unreasonable and not taken in good faith; and that it violated her constitutional rights and was actionable under section 1983 of the Civil Rights Acts."). See id. at 907, 911. Although the Glasson opinion does not focus on the precise issue now before us, its discussion of the officers' possible "good-faith defense" indicates that that affirmative defense is what officers who are merely following orders can use to limit their Section(s) 1983 liability. Cf. Pierson v. Ray, 386 U.S. 547, 555 (1967) (noting that good-faith defense prevents police officers from having to "choose between being charged with dereliction of duty . . . and being mulcted in damages").
We are mindful that in many situations prison guards must act quickly, with little time to ponder the legality of their actions. Such circumstances are not present in this case and, when they arise in the future, are properly part of a defense of qualified immunity and, where applicable, questions of intent. See Anderson v. Creighton, 483 U.S. 635, 641 (1987). If plaintiffs' allegations are true, defendants have knowingly participated in actions beyond the pale of acceptable behavior.
Because, however, it does appear that deputy Tamminga may be a proper — indeed, the most culpable — defendant in this case, we note that under Berndt v. Tennessee, 796 F.2d 879, 882-83 (6th Cir. 1986), it may be appropriate for the district court on remand to allow plaintiffs to amend their complaint to include him as a defendant.
Plaintiff X also claims that Bildner, Blatter, and Graham not only refused to give him cleaning supplies so that he could clean his allegedly filthy cell but also refused to allow a prison porter to give him the standard cleaning supplies. J.A. at 70 (X Affidavit Para(s) 22). Defendants do not claim that they did this under orders. To the extent these retaliatory actions go beyond de minimis, as discussed below with respect to the alleged Eighth Amendment violation and the harassment of Bell, they support a retaliation claim.
B. Retaliation against Plaintiff Bell
Plaintiff Bell, too, claims retaliation. There is no question that, taking his affidavit and verified complaint as true, he has alleged that defendant Karazim intentionally retaliated against him for filing a lawsuit against the prison warden, in violation of Bell's right to access the courts. The issue here is whether being served cold meals is significant enough to warrant a federal suit under Section(s) 1983. Compare Ingraham v. Wright, 430 U.S. 651, 674 (1977) ("There is, of course, a de minimis level of imposition with which the Constitution is not concerned."), with Rutan v. Republican Party of Illinois, 497 U.S. 62, 76 n. 8 (1990) ("[T]he First Amendment . . . protects state employees . . . from even an act of retaliation as trivial as failing to hold a birthday party for a public employee when intended to punish her for exercising her free speech rights.") (citation and internal punctuation omitted).
We disagree with the district court's conclusion that Bell's sworn statement that "Karazim started giving [him] cold trays which he refused to re-warm," Bell Affidavit Para(s) 10, fails to state a claim because it was not Karazim's job to re-warm food. Bell's statement, together with the allegations in his complaint that he "is being punished by [defendant] Karazim by [his] serving plaintiff cold trays," J.A. at 24 (Complaint 48), and that Karazim "told plaintiff Bell that the treatment would stop if plaintiff Bell cancel[ed] the litigation," id. at 18 (Complaint 24), indicates that Karazim's conduct went beyond a failure re-warm food which the staff had inadvertently allowed to cool.
We take as our starting point Judge Posner's analysis in Bart v. Telford, 677 F.2d 622 (7th Cir. 1982). In a case involving alleged retaliation against a public employee for her assertion of her First Amendment rights, he wrote that
[t]he effect on freedom of speech may be small, but since there is no justification for harassing people for exercising their constitutional rights it need not be great in order to be actionable. Yet even in the field of constitutional torts de minimis no curat lex. Section 1983 is a tort statute. A tort to be actionable requires injury. It would trivialize the First Amendment to hold that harassment for exercising the right of free speech was always actionable no matter how unlikely to deter a person of ordinary firmness from that exercise . . . .
Id. at 625. Cf. Perry v. Sindermann, 408 U.S. 593, 597 (1972) ("[I]f the government could deny a benefit to a person because of his constitutionally protected speech, . . . his exercise of those freedoms would in effect be penalized and inhibited."). Under this analysis, the relevant question is whether the prospect of cold meals for an unspecified, but possibly quite long, time could possibly deter a reasonable prisoner from filing a meritorious suit in the future. See Crawford-El v. Britton, 93 F.3d 813, 826 (D.C. Cir.) (en banc) (using Bart analysis), petition for cert. filed, 65 U.S.L.W. 3416 (U.S. Nov. 25, 1996) (No. 96-827). Because we believe that the answer to this question is likely yes, we reverse the grant of summary judgment on this issue.
We acknowledge that this test could conceivably be circular. An inmate threatened with bland food as a retaliation might well be deterred from complaining about the tasteless food he was already served; this would not, however, elevate the deprivation to constitutional dimensions. The proper test is whether the alleged retaliation could deter an inmate from pursuing a lawsuit alleging a violation which clearly goes beyond de minimis.
In any case, the defendants have not met their initial burden under Rule 56 of showing the absence of a material factual dispute.
We note, too, that the petty nature of this harassment does not in itself bar constitutional scrutiny. If Karazim had based his decision to bring cold food on Bell's race we would find that to violate the Equal Protection Clause. If he had engaged in this same petty harassment because of Bell's religion, we would similarly find that the First Amendment does not tolerate such conduct. Although the interests protected in such cases are different from those here at issue, we nonetheless believe that this kind of petty retaliation for the exercise of the right to access the courts is actionable under Section(s) 1983; to hold otherwise would be to permit prison officials to engage openly in such retaliatory harassment. Cf. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803) ("The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury."). We therefore hold that Bell's allegations support a retaliation claim against Karazim.
C. Eighth Amendment Violations
Plaintiff X alleges that the following conditions, taken as a whole, violate his right under the Eighth Amendment to be free from cruel and unusual punishment:
1. That the mentally ill prisoners on base throw human waste at each other and on the prison guards, and that there is a constant odor of human waste and urine. J.A. at 20 (Complaint Para(s) 30). X states that he fears leaving his cell because he worries that he may have waste and urine thrown at him, id. at 21 (Complaint Para(s) 34), and that he became ill and unable to eat because of the odor, id. at 24-25 (Complaint Para(s) 53, 55).
2. That the other prisoners flood the gallery with water. Id. at 20 (Complaint Para(s) 30).
3. That the other prisoners on base beat on their footlockers so loudly that X cannot sleep. Id. (Complaint Para(s) 31).
4. That the prisoner in an adjacent cell urinates through the door of his cell and refuses to bathe or flush his toilet. Id. (Complaint Para(s) 32); id. at 71 (X Affidavit Para(s) 29).
5. That two members of the prison nursing staff, Betty Clasper and Karen Reeding [sic], have requested that X be moved to another cell. Id. at 25 (Complaint Para(s) 54); id. at 72 (X Affidavit Para(s) 36).
6. That this section of the prison is cleaned only occasionally, when "deputies or a tour" are expected. Id. at 25 (Complaint Para(s) 56).
7. That the cell to which X was moved initially had blood on the wall, and that the defendants refused to provide, or allow the prison porter to provide, cleaning supplies. Id. at 70 (X affidavit Para(s) 22).
8. That X never was never cited for a violation which would merit his being placed on base, and that in any case other inmates who are not mentally ill are not moved to the section of the prison where he has been placed. Id. at 71 (X affidavit Para(s) 27, 28).
The record also contains a grievance form, signed by plaintiff X and dated 6/25/94, which states that a prisoner in a nearby cell has been "using the toilet on his floor [and] urinating out his door," and that the smell was making X ill. J.A. at 118.
None of the defendants' affidavits disputes any of these allegations, with the sole exception of a statement by defendant Blatter that he could locate no request from the nursing staff in X's file that X be moved to a different cell. See J.A. at 55 (Blatter affidavit Para(s) 11). Defendants did submit an affidavit of MDOC Litigation Coordinator Cynthia Acker stating that she was unable to find any record of an inmate spreading feces on his wall on June 8, 1994. Dist. Ct. Docket # 65 Para(s) 5-9. Attached to this affidavit is a document entitled "Sanitation Inspection — Weekly: SMI Administrative Segregation" dated June 9, 1994, which reported that all areas had been found to be satisfactory, with one minor exception. J.A. at 120. This rather limited affidavit, along with a single inspection report made the day after X was moved to his new cell, does not vitiate plaintiff's factual claims for summary judgment purposes.
In a usual conditions-of-confinement case, this situation would perhaps not constitute an Eighth Amendment violation. See Wilson v. Seiter, 893 F.2d 861, 865 (6th Cir. 1990), rev'd on other grounds, 501 U.S. 294 (1991). The courts have neither the duty nor the authority to mandate ideal or comfortable prisons and thus should be reluctant to find that prison conditions are in themselves cruel and unusual; it is the legislatures' job to decide what resources to allocate to prisons, and thus, within limits, how comfortable inmates will be. Rhodes v. Chapman, 452 U.S. 337, 351-52 (1981). Plaintiff X, however, alleges that he was moved to his present cell in retaliation for filing lawsuits and grievances. He is not claiming that the conditions are so awful that they constitute cruel and unusual punishment per se, rather that he was put in a disgusting cell on base in order to punish him. As discussed above, X presented an affidavit which, if true, shows that the motive for this punishment was at best arbitrary and likely unconstitutional. Moving X to the new cell may thus have been "totally without penological justification" which, to the extent that it caused him appreciable pain or injury, could violate the Eighth Amendment. See Rhodes, 452 U.S. at 346 ("Today the Eighth Amendment prohibits punishments which, although not physically barbarous, involve the unnecessary and wanton infliction of pain. . . . Among unnecessary and wanton inflictions of pain are those that are totally without penological justification.") (citations and internal quotation marks omitted); Parrish v. Johnson, 800 F.2d 600, 604-05 (6th Cir. 1986). As the Court wrote in Hudson v. McMillian, 503 U.S. 1 (1992),
Because routine discomfort is part of the penalty that criminal offenders pay for their offenses against society, only those deprivations denying the minimal civilized measures of life's necessities are sufficiently grave to form the basis of an Eighth Amendment violation. A similar analysis applies to medical needs. Because society does not expect that prisoners will have unqualified access to health care, deliberate indifference to medical needs amounts to an Eighth Amendment violation only if those needs are serious.
In the excessive force context, society's expectations are different. When prison officials maliciously and sadistically use force to cause harm, contemporary standards of decency always are violated. This is true whether or not significant injury is evident.
Id. at 9 (citations and internal quotation marks omitted). Accord McHenry v. Chadwick, 896 F.2d 184, 187 (6th Cir. 1990) ("[A] prisoner alleging an eighth amendment violation need not prove that he suffered a serious physical injury, rather he must demonstrate that the infliction of pain was unnecessary and wanton."). Similarly, when a prison maliciously exposes an inmate to harsh and unhealthful conditions, without any valid justification, it violates the Eighth Amendment. It is one thing for a state to argue that these conditions are unpleasant but that the mentally ill inmates' actions make remedying them impossible or unduly expensive. See Appellees' Br. at 19 ("The Michigan Department of Corrections recognizes that the maintenance of a clean, safe and healthy environment in the segregation units is essential for both the prisoners living in these cells and the staff assigned to work in this area, and that such an environment is difficult if not impossible to obtain when prisoner behavior includes the throwing of food, utensils and human waste.") It is quite another, however, for prison officials to subject an inmate to such conditions purely in order to punish him for permissible, and perhaps constitutionally protected, behavior. Cf. Hudson, 503 U.S. at 6 ("[T]he question whether the measure taken inflicted unnecessary and wanton pain and suffering ultimately turns on whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.") (citation and internal quotation marks omitted); Whitley v. Albers, 475 U.S. 312, 322 (1986) (Deference to prison administration "does not insulate from review actions taken in bad faith and for no legitimate purpose."). We therefore reverse the district court's grant of summary judgment as to this issue.
Plaintiff X's allegations that he faces exposure to other inmates' fecal matter, and consequent illness, either directly or because the gallery is at times flooded with water that would be contaminated by such matter, that he has been sickened by the odor, and that a nurse requested that X be moved to another cell, suggest that the violations in this case are more than de minimis. See United States v. Michigan, 680 F. Supp. 270, 277-78 (W.D. Mich. 1988) ("[T]he state's interest in preventing the throwing of food items and human waste by prisoners in segregation is strong indeed."). See also Hudson, 503 U.S. at 9-10 (Eighth Amendment does not prohibit de minimis violations which are not "repugnant to the conscience of mankind") (citation omitted). Cf. Helling v. McKinney, 509 U.S. 25, 35-36 (1993) (holding that inmate exposure to tobacco smoke may state Eighth Amendment claim).
D. Other Claims
Plaintiffs' other claims are without merit. X and Bell claim that defendants' refusal to pass legal papers between them or to provide them with paper violated their right of access to the courts. As discussed above, under Lewis v. Casey, 116 S.Ct. 2174 (1996), they must show actual prejudice in order to prevail on this claim. Plaintiff Bell has alleged that he was unable to respond to a magistrate judge's report and recommendation denying him a temporary restraining order because of defendants' actions. Bell Affidavit Para(s) 11. Because, however, plaintiffs have provided no information about this case, such as whether the court eventually granted the T.R.O., or whether the request for one was frivolous, we affirm the district court's decision to grant summary judgment on this claim. See Lewis, 116 S.Ct. at 2181 (Prison systems should not be ordered to change "at least until some inmate could demonstrate that a nonfrivolous legal claim had been frustrated or was being impeded.") (footnotes omitted).
Plaintiffs submitted evidence that at least some defendants had retaliated against them by refusing to issue them pens and paper, and also refer to a television set which Karazim allegedly gave to X and then took away. Bell Affidavit Para(s) 13; J.A. at 16 (Complaint Para(s) 15); id. at 72 (X Affidavit Para(s) 33-35). We agree with the district court that these allegations are too murky and internally inconsistent to state independent claims. We do not, however, agree that because it was not the defendants' duty to pass such materials to inmates, and because inmates in administrative detention are officially prohibited from having televisions, these allegations are irrelevant. See J.A. at 148-149 (Dist.Ct. Opinion at 12-13). Because there is evidence that the defendants gave other prisoners these privileges and that they earlier accorded plaintiffs them, too, their conduct may constitute retaliation. That the inmates have no legal entitlement to a right or privilege is relevant in such a retaliation claim only insofar as it may reflect defendants' intent: the gravamen of the claim is that plaintiffs were treated differently because they filed lawsuits, not that such treatment would in itself be illegal. See ACLU of Maryland, Inc., v. Wicomico County, Maryland, 999 F.2d 780, 785 (4th Cir. 1993) (per curiam) ("Retaliation by a public official for the exercise of a constitutional right is actionable under 42 U.S.C. §(s) 1983, even if the act, when taken for different reasons, would have been proper.") (citation omitted). Cf. Rutan v. Republican Party of Illinois, 497 U.S. 62, 72 (1990) ("[E]ven though a person has no `right' to a valuable governmental benefit and even though the government may deny him the benefit for any number of reasons, there are some reasons upon which the government may not rely. It may not deny a benefit to a person on a basis that infringes his constitutionally protected interests — especially, his interest in freedom of speech.") (quoting Perry v. Sindermann, 408 U.S. 593, 597 (1972)). Such different treatment would also, of course, bear upon defendants' intent. Similarly, Karazim's statement that he had been assigned to harass Bell, although not in itself enough to constitute a violation, is relevant to intent.
See J.A. at 23 (Complaint Para(s) 43).
See id. at 22 (Complaint Para(s) 40); id. at 68 (X Affidavit Para(s) 5).
The district court's assertion that because defendants had no duty they had met their burden of showing that they would have acted in the same way if plaintiffs had not filed lawsuits flies in the face of the evidence that they had previously acted differently toward plaintiffs.
In the district court plaintiffs claimed that prison regulations gave them a variety of liberty interests which defendants have violated. They do not, however, appeal the denial of these claims, perhaps because Sandin v. Conner, 115 S.Ct. 2293 (1995), likely defeats them.
IV. CONCLUSION
For the reasons discussed above, we REVERSE the district court's granting of summary judgment as to plaintiff Bell's retaliation claims against Karazim. We similarly REVERSE the grant of summary judgment as to plaintiff X's retaliation and Eighth Amendment claims against defendants Karazim, Graham, Bildner, and Blatter. We AFFIRM the remainder of the district court's judgment. We therefore REMAND for proceedings consistent with this opinion and this court's decision in Berndt v. Tennessee, 796 F.2d 879 (6th Cir. 1986).