Robert Rustan v. Debora Rasmussen ( 2000 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 99-3283
___________
Robert Rustan, Jr., *
*
Appellant, *
* On Appeal from the United States
v. * District Court for the
* Southern District of Iowa.
Debora Rasmussen; Timothy Helmick, *
CO, * [Not to be published]
*
Appellees. *
___________
Submitted: February 3, 2000
Filed: February 11, 2000
___________
Before RICHARD S. ARNOLD, BOWMAN, and BEAM, Circuit Judges.
___________
PER CURIAM.
Robert Rustan, Jr., an Iowa prisoner, appeals from the District Court’s 1 order
granting summary judgment in favor of defendant prison officials in this 42 U.S.C.
§ 1983 action. We affirm.
While incarcerated at Iowa Medical and Classification Center (IMCC), Rustan
filed a grievance against defendant correctional officer Rasmussen, contending she
1
The Honorable Charles R. Wolle, United States District Judge for the Southern
District of Iowa.
harassed him continually regarding the quality of his performance of his prison job.
Rustan alleged that after Rasmussen learned of this grievance, and also heard a rumor
that Rustan was circulating a petition to have her fired, Rasmussen and fellow
correctional officer Helmick engaged in a pattern of retaliatory behavior, culminating
in Rustan’s transfer to Anamosa State Penitentiary (ASP). This behavior included
verbal threats, Rasmussen’s filing of a false disciplinary, and Helmick’s searching
Rustan and his cell.
The District Court granted defendants’ motion for summary judgment, rejecting
Rustan’s contention that it was untimely filed. The Court concluded that even
accepting as true Rustan&s assertion that his transfer to ASP was motivated in part by
the grievance he filed, he had not overcome defendants’ evidence that his transfer for
other reasons was inevitable, and thus could not show that but for the grievance he
filed, he would not have been transferred.
We conclude the District Court did not err in accepting defendants’ summary
judgment motion, even though it was filed five days after the deadline for dispositive
motions set by the Court’s scheduling order, because the tardy filing did not prejudice
Rustan under the circumstances, defendants had told Rustan they intended to file the
motion, and there was no evidence defendants’ untimely filing was in bad faith. Cf.
Summers v. Missouri Pac. RR. Sys., 132 F.3d 599, 604-06 (10th Cir. 1997) (finding
good cause for modifying scheduling order to add witness where no prejudice or
surprise to parties and no bad faith or willfulness in failing to comply with court’s
order).
As to the merits, after our de novo review, see Dulany v. Carnahan, 132 F.3d
1234, 1237 (8th Cir. 1997), we conclude that the District Court’s grant of summary
judgment was appropriate. As to his retaliatory-transfer claim, Rustan failed to rebut
defendants’ evidence that they had no part in the transfer decision. See Martin v.
-2-
Sargent, 780 F.2d 1334, 1338 (8th Cir. 1985) (to be liable, defendant in § 1983 action
must have been personally involved in or directly responsible for conduct that caused
injury). Moreover, in response to evidence defendants submitted that other legitimate
penological reasons (Rustan’s security rating, available programming, and length of
sentence) underlay the transfer decision, Rustan did not provide evidence he would not
have been transferred “but for” his actions in opposing Rasmussen. See Ponchik v.
Bogan, 929 F.2d 419, 420 (8th Cir. 1991) (prisoner must establish transfer would not
have occurred “but for” exercise of constitutional right; rejecting retaliatory-transfer
claim even where filing of lawsuits against officials was clearly factor in transfer,
because prisoner did not prove transfer would not have been made “but for” litigation).
We also conclude summary judgment was warranted on Rustan’s claims that
defendants harassed and threatened him in retaliation for his grievance and petition
against Rasmussen. First, Rustan&s claim that Rasmussen and Helmick verbally
threatened him cannot form the basis of a cognizable section 1983 claim. See Martin
v. Sargent, 780 F.2d at 1338 (“[v]erbal threats are not constitutional violations
cognizable under § 1983”). As to Rustan’s claim that Rasmussen retaliated by filing
a disciplinary charge against him, he failed to rebut defendants’ evidence that he was
in fact convicted of the disciplinary violation. See Earnest v. Courtney, 64 F.3d 365,
367 (8th Cir. 1995) (per curiam) (retaliation claim is precluded if punishment was
imposed based on actual violation of prison rules); Henderson v. Baird, 29 F.3d 464,
469 (8th Cir. 1994) (prison disciplinary committee’s finding, based on corrections
officer’s description of events, that prisoner actually violated prison regulations
essentially “checkmate[d]” prisoner’s retaliation claim), cert. denied , 515 U.S. 1145
(1995).
As to Rustan’s claim that Helmick harassed him by searching his cell, although
the Eighth Amendment protects prisoners from the “misery inflicted through frequent
retaliatory cell searches,” Scher v. Engelke, 943 F.2d 921, 924-25 (8th Cir. 1991), cert.
-3-
denied, 503 U.S. 952 (1992), we conclude that the searches Rustan described did not
amount to unconstitutional conduct. See Vigliotto v. Terry, 873 F.2d 1201 (9th Cir.
1989) (applying general requirement that Eighth Amendment claimant allege and prove
unnecessary and wanton infliction of pain to claim of retaliatory cell search, and finding
single incident insufficient); cf. Scher, 943 F.2d at 924 (frequent retaliatory cell
searches, some of which resulted in violent dishevelment of inmate’s cell, could suffice
as requisite injury for Eighth Amendment claim).
Accordingly, we affirm.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
-4-