Herron v. Harrison

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0054P (6th Cir.)
File Name: 00a0054p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
;

ISSAC LYDELL HERRON,

Plaintiff-Appellant,


No. 98-5726
v.

>
JIMMY HARRISON, et al., 
Defendants-Appellees. 
1
Appeal from the United States District Court
for the Western District of Tennessee at Memphis.
No. 96-03051—J. Daniel Breen, Magistrate Judge.
Submitted: December 7, 1999
Decided and Filed: February 14, 2000
Before: COLE and GILMAN, Circuit Judges; CARR,
District Judge.*
*
The Honorable James G. Carr, United States District Judge for the
Northern District of Ohio, sitting by designation.
1
2 Herron v. Harrison, et al. No. 98-5726 No. 98-5726 Herron v. Harrison, et al. 11
_________________ he asserts that “[t]he acts and practices of the defendants
described in . . . this complaint violates [sic] plaintiff’s
COUNSEL Fourteenth Amendment right against discrimination based on
religion.” He has not, however, alleged specific incidents of
ON BRIEF: Pamela S. Lorch, OFFICE OF THE religious discrimination outside of the claims already
ATTORNEY GENERAL, CIVIL RIGHTS & CLAIMS considered and dismissed in Herron v. Bradley. These claims
DIVISION, Nashville, Tennessee, for Appellees. Issac L. may not be raised again. See Montana v. United States, 440
Herron, Only, Tennessee, pro se. U.S. 147, 153 (1979) (“Under res judicata, a final judgment
on the merits bars further claims by parties or their privies
_________________ based on the same cause of action.” (citations omitted)).
OPINION III. CONCLUSION
_________________
For all of the reasons set forth above, we REVERSE the
RONALD LEE GILMAN, Circuit Judge. Issac L. Herron, magistrate judge’s order of dismissal as to the retaliation
a Tennessee state prisoner, filed a civil rights complaint claim found in Herron’s first supplemental complaint and
against various officials of the Cold Creek Correctional REMAND for further proceedings consistent with this
Facility and the Tennessee Department of Corrections opinion. We AFFIRM the dismissal of the remainder of
(collectively, CCCF officials) pursuant to 42 U.S.C. §§ 1983, Herron’s claims.
1985, and 1986. Herron alleges that those officials violated
his civil rights both directly, by burdening the exercise of his
constitutional rights, and indirectly, by retaliating against him
for exercising those rights. The magistrate judge to whom the
case was transferred dismissed Herron’s complaint for failure
to state a claim upon which relief may be granted, finding that
the majority of Herron’s claims did not allege sufficient facts
to constitute unlawful retaliation and the remainder of his
claims were barred by issue preclusion due to prior suits that
Herron had brought.
On March 8, 1999, several months after the briefs in this
appeal were filed, this court issued its en banc decision in
Thaddeus-X v. Blatter, 175 F.3d 378 (6th Cir. 1999), which
clarified the burden borne by a prisoner alleging retaliation
claims. Under the Thaddeus-X standard, one of Herron’s
allegations of retaliation potentially states a claim upon which
relief may be granted. We therefore AFFIRM in part,
REVERSE in part, and REMAND for further proceedings
consistent with this opinion.
10 Herron v. Harrison, et al. No. 98-5726 No. 98-5726 Herron v. Harrison, et al. 3
authority.” Under the proper standard expressed in Thaddeus- I. BACKGROUND
X, however, this court has found that placing an inmate in
administrative segregation “could deter a person of ordinary Herron brought two earlier lawsuits against the prison staff
firmness from exercising his First Amendment rights.” at CCCF before initiating this suit. In May of 1994, he filed
Dunham-Bey v. Holden, No. 98-15220, 1999 WL 1023730, at an action titled Herron v. Bradley, alleging violations of the
*2 (6th Cir. Nov. 5, 1999). See also Gibbs, 10 F.3d at 378 Religious Freedom Restoration Act (RFRA), 42 U.S.C.
(stating that segregation of a jailhouse lawyer in retaliation for § 2000bb, and his First Amendment rights to the free exercise
providing legal aid would be constitutionally impermissible). of religion. In that case, Herron charged CCCF officials with
purposely interfering with his observance of religious feasts
With the exception of demonstrating that his assistance was and services as a member of the Church of God. He also
needed by Muhammad, then, Herron has made out a prima charged prison officials with violating his rights by
facie claim of First Amendment retaliation under Thaddeus-X. terminating the visitation privileges of Marvin Brunken, a
He alleged that he engaged in protected conduct (legal religious volunteer who had led Church of God services at the
assistance), that he was subsequently disciplined to a degree prison.
that might deter an ordinary person from such conduct, and
that the two incidents were causally linked. Should Herron At an evidentiary hearing in the Bradley case, Herron
produce evidence showing that the inmate he assisted alleged that prison officials were then in the process of
required that assistance, he will have established all three transferring him to another institution in retaliation for his
elements of a prima facie claim of unconstitutional retaliation. attempts to seek legal redress against them. In an order dated
We therefore reverse the magistrate judge’s dismissal of the March 28, 1997, the district court granted Herron’s motion
retaliation claim alleged in Herron’s first amended complaint to temporarily enjoin CCCF officials from transferring him to
and remand to allow Herron to amend his complaint if he so another facility. The district court concluded that RFRA
chooses. provided Herron with a valid First Amendment claim and that
CCCF officials were therefore not permitted to retaliate
C. Herron’s equal protection claim against Herron for asserting that claim. After the Supreme
Court issued its opinion in City of Boerne v. Flores, 521 U.S.
The magistrate judge properly dismissed Herron’s equal 507 (1997), overruling RFRA and thus eliminating the legal
protection claim, which was raised in both his original and grounds for Herron’s complaint, the district court vacated the
supplemental complaints. An equal protection claim must preliminary injunction and dismissed Herron’s entire suit.
assert that the plaintiff suffered class-based discrimination.
See McCleskey v. Kemp, 481 U.S. 279, 292 (1987); Henry v. In his second case, Herron v. Campbell, filed in November
Metropolitan Sewer Dist., 922 F.2d 332, 341 (6th Cir. 1990) of 1995, Herron alleged unconstitutional interference with the
(“To state a claim under the Equal Protection Clause, a fund-raising activities of the Church of God at Cold Creek
§ 1983 plaintiff must allege that a state actor intentionally (CGCC), a church that Herron had incorporated. That case
discriminated against the plaintiff because of membership in was dismissed in January of 1997 on the grounds that Herron
a protected class” (citation and internal quotation marks had no standing to raise the corporation’s rights and, as a non-
omitted)). In his original and first supplemental complaints, lawyer, had no right to argue on its behalf.
Herron invokes the Equal Protection Clause without
identifying the protected class to which he belongs. Herron In the present case, filed in October of 1996, Herron
is more specific in his second supplemental complaint, where charges CCCF officials with a series of civil rights violations,
some of which are new and others of which were raised in
4 Herron v. Harrison, et al. No. 98-5726 No. 98-5726 Herron v. Harrison, et al. 9
Herron’s prior lawsuits. First, in his original complaint, own First Amendment rights. The question, then, is whether
Herron charges defendants with unconstitutional retaliation Herron’s failure to allege that Muhammad required his
against the exercise of his First Amendment right to seek assistance warrants dismissal of his claim at this stage. As
legal redress. Herron relates that he has filed several stated above, a pro se plaintiff’s complaint should only be
grievances on his own behalf, as well as on behalf of a group dismissed under Rule 12(b)(6) if it is clear that relief would
of Muslim inmates. In retaliation, he alleges that prison not be appropriate under any set of facts that could be proved.
officials interfered with his religious services, denied his See Estelle, 429 U.S. at 106. Such is not the case here.
request to conduct business on behalf of CGCC, suspended
his wife’s visitation privileges, terminated him from his The case of Gibbs v. Hopkins, 10 F.3d 378 (6th Cir. 1993),
prison job, and ordered him transferred to the South Central is directly on point. In that case, an inmate alleged that prison
Correctional Center (SCCC). (Herron was not, in fact, officials retaliated against him for providing legal assistance
transferred to SCCC, although he was subsequently to other inmates. Like Herron, the plaintiff in Gibbs
transferred to Turney Center Industrial Prison—a move that neglected to allege that his services were vital to the other
he does not challenge in this case). inmates’ right of access to the courts. The trial court granted
summary judgment to the defendants based on this omission.
In his first supplement to the pending complaint, Herron On appeal, this court reversed and remanded, stating that
charges three CCCF officials with taking further retaliatory “[w]e . . . believe that Gibbs should be allowed to amend his
actions against him for appearing before the institutional complaint to properly allege a constitutional claim of denial
grievance board on behalf of a fellow inmate, Abu Bakar of access to the courts, including an allegation that there are
Muhammad. Two days after his appearance, Herron alleges no reasonable alternatives which ensure access to the courts
that defendant Tuggle approached Herron while Herron was for the prisoners at the Chippewa Correctional Facility.” Id.
visiting with his wife and instructed him to put his feet under at 379. Given the fact that Rule 56 imposes a more
the table. Herron and Tuggle then entered into a dispute over demanding burden on a plaintiff than Rule 12(b)(6), it would
the validity of this rule. Herron was later charged with and be incongruous to dismiss Herron’s retaliation claim in view
convicted of creating a disturbance, and sentenced to five of Gibbs’s reversal of summary judgment when considering
days of punitive segregation, thirty days’ loss of visitation the same omission.
privileges, two months’ loss of package privileges, and an
infraction fine of three dollars. Herron claims that the As an alternative ground for its holding, the magistrate
disciplinary action was taken in retaliation for his having judge also concluded that none of the disciplinary actions that
asserted his First Amendment rights to file grievances and to Herron alleges in his first supplemental complaint rise to the
provide legal assistance to another inmate. He also alleges level of impermissible retaliation. The magistrate judge drew
several violations of his due process rights in the conduct of upon pre-Thaddeus-X precedents in so holding, and
his disciplinary proceeding and sentencing. mistakenly applied the general retaliatory standard to claims
that allege retaliation against Herron’s exercise of First
Finally, in his second supplement to the pending complaint, Amendment rights. Thus, regarding Herron’s most serious
Herron alleges that his right to privacy was violated when allegation that he was sentenced to five days of administrative
prison officials requested an additional copy of the charter segregation in retaliation for assisting Muhammad, the
and bylaws of CGCC. When Herron declined this request, magistrate judge found that “a prison disciplinary conviction
CCCF officials allegedly retaliated against him by firing and confinement to segregation for creating a disturbance
Brunken from his position as a religious volunteer. Herron neither shocks the conscience nor egregiously abuses
8 Herron v. Harrison, et al. No. 98-5726 No. 98-5726 Herron v. Harrison, et al. 5
dismissed Herron’s entire complaint as frivolous in an order claims that his First Amendment rights to the free exercise of
dated July 7, 1997, after RFRA was overruled. religion were thereby infringed because, without Brunken, he
was unable to observe the Feast of Pentecost in the proper
In the same order vacating the preliminary injunction, the manner, congregate for Sabbath evening services, conduct
district court stated that “[a]s Herron has no claim for acts of charity, or produce his church newsletter. In depriving
interference with his First Amendment rights, he has no claim him of the opportunity to associate with Brunken, Herron also
for retaliation . . . .” Herron therefore may not now allege maintains that prison officials violated his freedom to
specific retaliation by prison officials against him for pursuing associate and his right to privacy. Furthermore, Herron
the free exercise claims that were dismissed as frivolous in claims that he was singled out for differential treatment on the
Bradley. To the extent that Herron is alleging a general claim basis of his religious affiliation, in violation of the Equal
of retaliation, the retaliatory acts alleged by Herron in this Protection Clause of the Fourteenth Amendment. Herron’s
complaint, such as the suspension of his wife’s visitation original and supplemental complaints also charge CCCF
privileges and a threatened transfer to another facility, fall far officials with parallel violations of the Tennessee constitution.
short of the “shock the conscience” test.
On October 21, 1997, the defendants moved to dismiss all
2. Herron’s right to provide legal assistance to others of Herron’s complaints for failure to state a claim upon which
relief may be granted. By order dated April 16, 1998, the
Herron’s other retaliation claim, contained in his first magistrate judge to whom the case had been transferred by
supplemental complaint, alleges that CCCF officials consent of the parties granted Herron’s motion to file his
impermissibly disciplined him for assisting Abu Bakar second supplemental complaint, but contemporaneously
Muhammad in arguing a grievance before the prison board. granted the prison officials’ motion to dismiss all of Herron’s
The magistrate judge dismissed this claim, recognizing the claims pursuant to Rule 12(b)(6) of the Federal Rules of Civil
principle that an inmate does not generally have an Procedure. Herron filed a timely notice of appeal on April 29,
independent right to help other prisoners with their legal 1998.
claims. See Thaddeus-X, 175 F.3d at 395. Such assistance is
protected, however, when the inmate receiving the assistance II. ANALYSIS
would otherwise be unable to pursue legal redress.
Assistance is then protected as a derivative of the A. Standard of review
complainant’s right of access to the courts. See Thaddeus-X,
175 F.3d at 395; Gibbs v. Hopkins, 10 F.3d 373, 378 (6th Cir. We review a trial court’s decision to grant a motion to
1993). As an example, the assisting inmate in Thaddeus-X dismiss de novo. See Weiner v. Klais & Co., 108 F.3d 86, 88
was found to have engaged in protected conduct because the (6th Cir.1997). When considering a motion to dismiss
complainant had no knowledge of the law, was being held in pursuant to Rule 12(b)(6) of the Federal Rules of Civil
administrative segregation, and could only access legal books Procedure, the trial court must accept all of the allegations in
by requesting them by title. the complaint as true, and construe the complaint liberally in
favor of the plaintiff. See Miller v. Currie, 50 F.3d 373, 377
Herron does not assert in his complaint that Muhammad (6th Cir.1995). A pro se plaintiff’s complaint is held to an
would have been unable to obtain access to the courts without especially liberal standard, and should only be dismissed for
him. Indeed, it appears that Herron is unaware of this failure to state a claim if it appears “beyond doubt that the
requirement, because his brief erroneously asserts that his plaintiff can prove no set of facts in support of his claim
legal work on behalf of other inmates is protected by Herron’s
6 Herron v. Harrison, et al. No. 98-5726 No. 98-5726 Herron v. Harrison, et al. 7
which would entitle him to relief.” Estelle v. Gamble, 429 inmate bears a lesser burden, and is only required to establish
U.S. 97, 106 (1976) (citation omitted). the following three elements: (1) the inmate engaged in
protected conduct, (2) an adverse action was taken that would
B. Herron’s allegations of impermissible retaliation deter a person of ordinary firmness from continuing to engage
in that conduct, and (3) the adverse action was motivated, at
The primary thrust of Herron’s complaint is that CCCF least in part, by the inmate’s protected conduct. See
officials impermissibly retaliated against him for exercising Thaddeus-X, 175 F.3d at 394.
his First Amendment right to file grievances and petition the
courts for redress. In March of 1999, eight months after 1. Herron’s right to pursue his own grievances
Herron had filed his appeal in this case, an en banc panel of
this court decided Thaddeus-X v. Blatter, 175 F.3d 378 (6th An inmate has an undisputed First Amendment right to file
Cir. 1999). Thaddeus-X clarified the law governing prisoner grievances against prison officials on his own behalf. See
retaliation claims where the retaliation is alleged to have been Noble v. Schmitt, 87 F.3d 157, 162 (6th Cir. 1996). This right
directed at an inmate’s efforts to litigate on behalf of himself is protected, however, only if the grievances are not frivolous.
or others. As the most recent, on-point decision of this court, See Lewis v. Casey, 518 U.S. 343, 353 (1996) (“Depriving
Thaddeus-X is controlling, despite the fact that Herron did not someone of a frivolous claim . . . deprives him of nothing at
bring the case to our attention as a supplemental authority. all, except perhaps the punishment of Federal Rule of Civil
Procedure 11 sanctions.”). Thus Herron’s pursuit of legal
There are two categories of retaliation claims—general claims against CCCF officials in the instant case and in
claims of retaliation and claims that allege that an individual previous cases was protected conduct only to the extent that
was retaliated against for the exercise of specific the underlying claims had merit.
constitutional rights. Thaddeus-X clarifies the elements of
each category and supplants previous cases that had blurred Herron’s only claim of retaliation for the exercise of his
the lines between the two. General claims of retaliation are own right of access to the courts is advanced in his original
brought under the Due Process Clause of the Fourteenth complaint. In that complaint, he describes a series of adverse
Amendment. To state a successful case of general retaliation, actions that CCCF officials allegedly took in response to his
a prisoner must establish “an egregious abuse of filing a lawsuit in Herron v. Bradley, a suit that charged
governmental power” or behavior that “shocks the prison officials with violating his First Amendment right to
conscience.” See id. at 387. In the great majority of cases, the free exercise of religion. Herron specifically claims that
inmates are unable to survive summary judgment under this CCCF officials suspended his wife’s visitation privileges,
demanding standard. The rare exceptions have been in cases terminated his job, and ordered him transferred to the SCCC,
where, for example, a prison official issued death threats all in retaliation for his filing a legal complaint.
against an inmate with a cocked pistol at his head, or where
prison officials trumped up false disciplinary charges against The underlying free exercise claims that allegedly sparked
an inmate and then proceeded to physically abuse him and these incidents of retaliation were presented in Bradley.
levy harsh disciplinary sanctions against him. See Cale v. Indeed, concerned by Herron’s allegations that prison officials
Johnson, 861 F.2d 943, 950-51 (6th Cir. 1988) (citing cases). might retaliate against Herron for filing the Bradley suit, the
district court issued a preliminary injunction to prevent CCCF
The second category of retaliation claims involves officials from transferring Herron to another facility while the
allegations that state officials penalized an individual for the case was pending. Ultimately, though, the district court
exercise of a specific constitutional right. In such cases, an