David Jones v. Wendy Kelley ( 2019 )

United States Court of Appeals
For the Eighth Circuit
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No. 17-3465
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David Lee Jones
lllllllllllllllllllllPlaintiff - Appellant
v.
Wendy Kelley, Director, Department of Correction Compliance Office; M. D.
Reed, Assistant Director, Department of Correction Compliance Office; Raymond
Naylor, Hearing Office Administrator, Department of Correction Compliance
Office; Randall Watson, Warden, Varner Unit; Jeremy Andrews, Deputy Warden;
Budnik, Deputy Warden (originally named as Butnik); Kennie Bolden, Major,
Varner Supermax; Scott Taylor, Captain, Varner Unit; Williams, Captain;
Bankston, Lieutenant, Varner Unit; Carolyn Eason, Lieutenant, Varner Unit;
Mingo, Sergeant; Powell, Sergeant, Varner Unit; Madden, Lieutenant; Gladys
Evans, Treatment Coordinator; Hawkins, Correctional Officer 1, Varner Unit;
Terrie Banister, Hearing Officer
lllllllllllllllllllllDefendants - Appellees
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Appeal from United States District Court
for the Eastern District of Arkansas - Pine Bluff
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Submitted: October 16, 2018
Filed: March 29, 2019
[Unpublished]
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Before COLLOTON, BOWMAN, and KELLY, Circuit Judges.
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PER CURIAM.
In this pro se action under 42 U.S.C. § 1983, Arkansas inmate David Jones
appeals the district court’s grant of summary judgment in favor of defendants on his
claims alleging interference with access to courts and retaliatory discipline. Viewing
the record in the light most favorable to Jones, we conclude that defendants were
entitled to summary judgment on the access-to-courts claim. On the retaliation claim
against defendant Taylor, we conclude that summary judgment was proper because
Jones failed to present sufficient evidence that Taylor acted with retaliatory motive.
With respect to the retaliatory discipline claim against defendant Mingo,
however, there are factual issues that require further proceedings. Disciplinary
reports may qualify as “some evidence” of a disciplinary violation that would defeat
a retaliation claim, see Hartsfield v. Nichols, 511 F.3d 826, 829-30 (8th Cir. 2008),
but the report here was based on the statement of a confidential informant rather than
personal knowledge of the reporting officer. In that situation, the district court should
conduct an in camera review of the confidential statement to determine whether it is
sufficient to constitute “some evidence” to support the disciplinary decision. See
Espinoza v. Peterson, 283 F.3d 949, 952 (8th Cir. 2002); Goff v. Burton, 91 F.3d
1188, 1192 (8th Cir. 1996); Freitas v. Auger, 837 F.2d 806, 810 (8th Cir. 1988).
Jones also presented evidence that, if believed, could support a finding that Mingo
acted because of Jones’s protected activity. R. Doc. 5, at 85-90.
For these reasons, we affirm in part, reverse in part, and remand for further
proceedings.
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KELLY, Circuit Judge, concurring in part and dissenting in part.
Defendants relied solely on the “some evidence” standard when seeking
summary judgment on the retaliation claims against Mingo and Taylor. Thus, Jones
was not on notice that he needed to come forward with evidence, other than the
disciplinary report, of either defendant’s retaliatory motive. Because it is unclear
whether there was “some evidence” to support the disciplinary report authored by
Taylor, I would remand the retaliation claims against Taylor, too.
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