Starr v. Dube

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 08-1322
DARREN F. STARR,
Plaintiff, Appellant,
v.
DENIS DUBE, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Steven J. McAuliffe, U.S. District Judge]
Before
Lynch, Chief Judge,
Torruella and Boudin, Circuit Judges.
Darren Starr on brief pro se.
Glenn A. Perlow, Assistant Attorney General, and Kelly A.
Ayotte, Attorney General, on brief for appellees.
June 24, 2009
Per Curiam. In his 42 U.S.C. § 1983 suit, pro se New
Hampshire state inmate Darren Starr sued certain prison employees
or officials, alleging that a false disciplinary charge was filed
against him and that a destructive search was made of his cell in
retaliation for his exercise of First Amendment rights. In an
Order dated December 7, 2007, the district court granted
defendants' motion for summary judgment on the retaliation claim
based on the disciplinary charge. Subsequently, a trial was held
on the cell search retaliation claim, and, on February 6, 2008, the
jury returned a special verdict against Starr. On February 7,
2008, the district court issued judgment in defendants' favor, and
Starr filed this appeal.
On appeal, Starr objects to the district court's summary
judgment decision and to certain of its trial-related rulings. We
affirm the district court's judgment in favor of the defendants for
the following reasons.
1. Starr objects to the district court's pretrial ruling
denying his request for a subpoena to obtain the testimony of a
certain corrections officer at trial. He also argues that the
district court erroneously instructed the jury as to his burden of
proof on one element of his retaliation claim. After careful
review of the record and the parties' appellate contentions,
however, we conclude that the district court did not abuse its
discretion in denying Starr's motion for a subpoena, or err in the
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jury instruction it gave. See McDonald v. Hall, 610 F.2d 16, 18
(1st Cir. 1979) ("Plaintiff must prove that he would not have been
transferred 'but for' the [retaliatory] reason.").
2. Starr contends that the district court's summary
judgment decision was erroneous. We review that decision de novo,
evaluating whether there is any genuine issue as to a material fact
and whether defendants were entitled to judgment as a matter of
law. Scottsdale Ins. Co. v. Torres, 561 F.3d 74, 77 (1st Cir.
2009).
The disciplinary charge against Starr was dismissed about
a week after it was filed. At the disciplinary hearing, the
hearing officer agreed with Starr's argument that the investigation
of the charge had been improper. Starr received no discipline or
other sanction due to the filing of the disciplinary charge.
Based on the above undisputed facts, the district court
held, as a matter of law, that the adverse act alleged was "de
minimis" and thus did not give rise to a cognizable retaliation
claim under § 1983. The court relied on the reasoning in Morris v.
Powell, 449 F.3d 682 (5th Cir.), cert. denied, 549 U.S. 1038(2006), where the circuit court adopted the standard used in other
circuits for evaluating the sufficiency of a particular adverse act
alleged by a prisoner raising a retaliation claim. Under that
standard, an adverse act is not de minimis if it "would chill or
silence a person of ordinary firmness from future First Amendment
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activities." Applying the standard, the Fifth Circuit found that
certain adverse acts would be de minimis--acts that cause an inmate
only a "few days of discomfort," impose "a [single] minor
sanction," or impose an otherwise constitutional restriction on the
inmate. 449 F.3d at 685-86 (mentioning the facts in that case and
prior circuit cases). As the district court pointed out, filing a
disciplinary charge that is dismissed constitutes an adverse act
that is "less substantial than the least substantial de minimis act
identified by the Morris court."
On appeal, Starr accepts that his retaliation claim must
be premised on an adverse act of a kind that would deter persons of
"ordinary firmness" from exercising their constitutional rights in
the future. He argues that the filing of the disciplinary charge
against him met that standard because it exposed him to maximum
penalties that included punitive segregation and a loss of good
time credits. There is case law in his favor. Brown v. Crowley
("Brown"), 312 F.3d 782, 789 (6th Cir. 2002) (majority decision),
cert. denied, 540 U.S. 823 (2003) (a reasonable jury could find
that filing a retaliatory charge exposing an inmate to a "risk of
significant sanctions" could deter persons of "ordinary firmness"
from exercising their rights); Zarska v. Higgins, 171 Fed. Appx.
255, 259-60 (10th Cir. 2006) (unpublished decision) (filing
retaliatory disciplinary proceedings "would chill a person of
ordinary firmness" from future exercise of his or her rights)
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(citation omitted); cf. Dixon v. Brown, 38 F.3d 379, 379-80 (8th
Cir. 1994) (a prisoner who has presented evidence that a "false"
disciplinary charge was filed for retaliatory reasons does not have
to "show a separate, independent injury").
We do not find the reasoning in the above cases to be
persuasive on the facts of this case. As a prison policy directive
contained in the record indicates, Starr was entitled to several
opportunities to present his version of the facts to neutral
decisionmakers. Indeed, at his disciplinary hearing, he
successfully obtained dismissal of the charge against him after
pointing out the irregularity in the prison's investigation of the
charge. Starr has not contended that it would be futile for
inmates at his prison to try to defend themselves against
retaliatory disciplinary charges.
The procedures in the prison policy directive serve to
protect inmates from the threat of punishment that is posed by a
retaliatory disciplinary charge. On the facts here, we cannot say
that a reasonable fact-finder could conclude that inmates of
"ordinary firmness" would be deterred from continuing to exercise
their constitutional rights merely because of the filing of a
disciplinary charge carrying potentially severe sanctions. See
Pittman v. Tucker, 213 Fed. Appx. 867, 871-72 (11th Cir. 2007)
(unpublished per curiam) (the court "could not conclude that a
person of ordinary firmness would be deterred from exercising his
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First Amendment rights" where inmates could defend themselves
against a charge before being disciplined and there was no evidence
or claim that it would be futile to attempt a defense); accord
Brown, supra, 321 F.3d at 801-02 (dissenting opinion by Rosen,
D.J., sitting by designation). See also Morris, supra; Gill v.
Tuttle, 93 Fed. Appx. 301, 303-04 (2d Cir. 2004) (unpublished) (to
survive a summary judgment motion, an inmate must allege an adverse
action that imposes a "substantial" impact on an inmate) (by
implication); Bridges v. Gilbert, 557 F.3d 541, 555 (7th Cir. 2009)
(a "single [allegedly unjustified] retaliatory charge that is later
dismissed is insufficient to serve as the basis of a § 1983
action").
Affirmed.
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