Shelton v. La Dept Corrctns ( 1999 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-30377
Summary Calendar
DENNIS M. SHELTON,
Plaintiff-Appellee,
versus
STATE OF LOUISIANA DEP’T OF CORRECTIONS, ET AL.,
Defendants,
J. MCGOVERN,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 96-CV-171-A-M2
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September 23, 1999
Before JOLLY, JONES, and BENAVIDES, Circuit Judges.
PER CURIAM:*
John McGovern, Classification Manager at Elayn Hunt
Correctional Center of the Louisiana Department of Corrections,
appeals the district court’s denial of his motion for summary
judgment in a 42 U.S.C. § 1983 civil rights actions filed by
Dennis M. Shelton, Louisiana prisoner # 122088. McGovern
contends that he is entitled to qualified immunity as to
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 98-30377
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Shelton’s claim that he transferred Shelton to Avoyelles
Correctional Center in Cottonport, Louisiana, in retaliation for
Shelton’s filing of several grievances and state civil actions.
We have jurisdiction to determine, as a matter of law, whether
McGovern is entitled to qualified immunity, after accepting all
of Shelton’s factual allegations as true, by determining whether
these facts show that McGovern’s conduct was objectively
reasonable under clearly established law. See Behrens v.
Pelletier, 516 U.S. 299, 313 (1996); Colston v. Barnhart, 130
F.3d 96, 98 (5th Cir. 1997), cert. denied, 119 S. Ct. 618 (1998).
The district court did not err in holding that Shelton has
alleged a chronology of events from which retaliation may be
plausibly inferred. See Woods v. Smith, 60 F.3d 1161, 1164 (5th
Cir. 1995). When Shelton’s allegations are taken as true, the
facts do not show that McGovern’s conduct was objectively
reasonable under clearly established federal law. See Behrens,
516 U.S. at 313; Colston, 130 F.3d at 98-99.
McGovern argues that his transfer of Shelton to Avoyelles
Correctional Center was not a “retaliatory adverse act.” Because
McGovern did not raise this claim in the district court, review
is limited to plain error. See Douglass v. United Servs. Auto.
Ass’n, 79 F.3d 1415, 1420 (5th Cir. 1996)(en banc); Robertson v.
Plano City of Tex., 70 F.3d 21, 23 (5th Cir. 1995)(citing United
States v. Calverley, 37 F.3d 160, 162-64 (5th Cir. 1994)(en banc)
and Highland Ins. v. National Union Fire Ins. Co. of Pittsburgh,
27 F.3d 1027, 1031-32 (5th Cir. 1994)). If McGovern shows clear
or obvious error that affects his substantial rights, this court
No. 98-30377
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has discretion to correct an error that seriously affects the
fairness, integrity, or public reputation of judicial
proceedings. See Calverley, 37 F.3d at 162-64. McGovern has not
cited any legal authority which establishes that the district
court made a clear or obvious error in holding that McGovern’s
actions may constitute a retaliatory adverse act. We have held
that “[a]n action motivated by retaliation for the exercise of a
constitutionally protected right is actionable, even if the act,
when taken for a different reason, might have been legitimate.”
See Woods, 60 F.3d at 1165. McGovern’s argument lacks merit.
McGovern argues that even if his actions were adverse, he is
still entitled to summary judgment as to grievance no. HCC-94-
1452 and civil action nos. 414,832 and 420,596. The issue of
which specific grievances and civil actions form the basis of
Shelton’s retaliation claim is a genuine issue of material fact
for trial which is not reviewable by this court at this time.
See Johnson v. Jones, 515 U.S. 304, 319-20 (1995); Lemoine v. New
Horizons Ranch & Ctr., Inc., 174 F.3d 629, 633 (5th Cir. 1999).
McGovern argues that the district court erred in not
dismissing Shelton’s state law claims as barred by the Eleventh
Amendment. He relies on Hughes v. Savell, 902 F.2d 376, 378 (5th
Cir. 1990). Louisiana law does not provide indemnification for
damages which result from intentional wrongful conduct or gross
negligence of the official or employee. See Reyes v. Sazan, 168
F.3d 158, 159-60 (5th Cir. 1999). Shelton’s allegations raise a
fact question concerning whether McGovern acted intentionally in
transferring him to Avoyelles and whether McGovern is entitled to
No. 98-30377
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indemnification. See id. at 162-63. Therefore, the district
court did not err in not dismissing Shelton’s state law claims as
barred by the Eleventh Amendment.
AFFIRMED.