Gary Bernard Sanders, 76973 v. Jimmie L. Jones - Concurring

IN THE COURT OF APPEALS OF TENNESSEE
WESTERN SECTION AT JACKSON
______________________________________________
GARY BERNARD SANDERS, #76973,
Plaintiff-Appellant,
Lauderdale Circuit No. 4713
Vs. C.A. No. 02A01-9610-CV-00261
JIMMIE L. JONES,
Defendant-Appellee.
____________________________________________________________________________
FROM THE LAUDERDALE COUNTY CIRCUIT COURT
THE HONORABLE JOSEPH H. WALKER, JUDGE
Gary Bernard Sanders, Pro Se
FILED
December 4,
Charles W. Burson, Attorney General and Reporter 2001
Jeffrey L. Hill, Assistant Attorney General
For Defendant-Appellee Cecil Crowson, Jr.
Appellate Court Clerk
REVERSED AND REMANDED
Opinion filed:
W. FRANK CRAWFORD,
PRESIDING JUDGE, W.S.
CONCUR:
ALAN E. HIGHERS, JUDGE
DAVID R. FARMER, JUDGE
Plaintiff, Gary Bernard Sanders, an inmate in the custody of the Tennessee Department
of Correction (TDOC) at the Cold Creek Correctional Facility, appeals from an order of the trial
court dismissing his complaint against the defendant, Jimmie L. Jones, a correctional officer at
the facility.1
Sanders filed his civil rights complaint pursuant to 42 U.S.C. § 1983 (1994), which
provides as follows:
§ 1983. Civil action for deprivation of rights
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the
District of Columbia, subjects, or causes to be subjected, any
citizen of the United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other proper
proceeding for redress.
Sanders alleges that Jones searched his cell and discovered legal records and related
materials and ordered him to discard the records or disciplinary action would be initiated.
Sanders is the prison’s law library clerk and acts as a jailhouse lawyer, and therefore, has an
abundance of legal records. Sanders avers that he is being “harassed, intimidated and scorn[ed]
on a regular basis with cell searches, verbal abuse and threats of disciplinary action by Defendant
Jones as a consequence of the Plaintiff’s refusal to discard records generated by his legal
endeavors.” Because Sanders did not dispose of his legal records, Jones filed two disciplinary
reports at different times charging Sanders with having too much property in his cell. Sanders
avers that Jones has subjected him, and continues to subject him, to repulsive remarks,
discriminating cell searches, and egregious noise levels. He also avers that Jones causes him to
report late for work, to miss meals, and to forego telephone privileges. Sanders avers that Jones
read the legal papers found in his cell and told him that he did not have the right to assist other
inmates with their legal problems or possess their records in his cell.
Finally, Sanders alleges that Jones “willfully, deliberately and through callous
indifference harassed and intimidated the Plaintiff with disciplinary reports and other illicit
conduct . . . caus[ing] Plaintiff a great deal of mental anguish and impact[ing] adversely upon
Plaintiff’s right to access to the courts” and that Jones “willfully, knowingly and intentionally
carried out threats of disciplinary retaliation . . . maliciously abusing the disciplinary process.”
On February 29, 1996, Jones filed a “Motion to Dismiss or for Summary Judgment.” He
relied upon a memorandum in support of the motion and his own affidavit. In his affidavit,
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Jones was sued in his individual capacity. Neither the State of Tennessee nor the
Tennessee Department of Correction is a party to this suit.
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Jones stated that he issued Sanders a disciplinary report for exceeding the amount of property
allowed in a cell. However, Jones denied that he read any of the legal materials and stated that
he has never harassed Sanders for any legal activities.
On March 14, 1996, Sanders filed his response to Jones’s Motion to Dismiss. Sanders
attached an affidavit in which he outlined in detail the verbal abuse and the harassment that he
claims Jones has inflicted upon him. He also attached nine exhibits including his law library
clerk pass, his work schedule, grievances he filed, the disciplinary reports, and copies of TDOC
policy.
The trial court granted Jones’s motion, and the case was dismissed. In its order
dismissing the case, the trial court stated, “Inmates lose certain privileges as a natural result of
incarceration. If an inmate is issued a disciplinary report as a result of exceeding the amount of
personal property allowed in his cell, this is not a matter for the Courts of Lauderdale County.”
Because each party relied upon an affidavit, the “Motion to Dismiss or for Summary Judgment”
will be treated as a motion for summary judgment pursuant to Tenn. R. Civ. P. 56.
Sanders appeals from the decision of the trial court and presents one issue for review:
Whether he asserted cognizable constitutional claims pursuant to 42 U.S.C. § 1983 sufficient to
survive a motion for summary judgment.
A trial court should grant a motion for summary judgment only if the movant
demonstrates that there are no genuine issues of material fact and that the moving party is
entitled to judgment as a matter of law. Tenn. R. Civ. P. 56.03; Byrd v. Hall, 847 S.W.2d 208,
210 (Tenn. 1993); Dunn v. Hackett, 833 S.W.2d 78, 80 (Tenn. App. 1992). The party moving
for summary judgment bears the burden of demonstrating that no genuine issue of material fact
exists. Byrd, 847 S.W.2d at 210. On a motion for summary judgment, the court must consider
the motion in the same manner as a motion for directed verdict made at the close of the plaintiff's
proof; that is, "the court must take the strongest legitimate view of the evidence in favor of the
nonmoving party, allow all reasonable inferences in favor of that party, and discard all
countervailing evidence." Id. at 210-11. In Byrd, the Tennessee Supreme Court stated:
Once it is shown by the moving party that there is no genuine
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issue of material fact, the nonmoving party must then
demonstrate, by affidavits or discovery materials, that there is a
genuine, material fact dispute to warrant a trial. In this regard,
Rule 56.05 provides that the nonmoving party cannot simply rely
upon his pleadings but must set forth specific facts showing that
there is a genuine issue of material fact for trial.
Id. at 211 (emphasis in original)(citations omitted). Where a genuine dispute exists as to any
material fact or as to the conclusions to be drawn from those facts, a court must deny a motion
for summary judgment. Id. (citing Dunn, 833 S.W.2d at 80). Suits for violations of civil rights
call for particularly close scrutiny of motions for summary judgment. Watson v. Norris, 729 F.
Supp. 581, 583 (M.D. Tenn. 1989).
Sanders asserts that he has a valid constitutional claim because Jones’s actions infringed
on his protected right of access to the courts. It is well established that prisoners have a
constitutional right of access to the courts. Bounds v. Smith, 430 U.S. 817, 821, 97 S.Ct. 1491,
1494 (1977). Meaningful access to the courts is the touchstone. Id. at 823, 97 S.Ct. at 1495.
Inmate access to the courts must be adequate, effective, and meaningful. Id.Jones asserts that Sanders’s interest in immediate access to legal paperwork is
outweighed by the State’s interest in providing a safe and healthy environment for the prisoners
in its care. Reasonable restrictions on direct access to legal materials may be justified in light
of legitimate penological interests in security. Skelton v. Pri-Cor, Inc., 963 F.2d 100, 104 (6th
Cir. 1991); see also Green v. Johnson, 977 F.2d 1383, 1390 (10th Cir. 1992) (holding that
prison rules restricting the amount of legal materials in an inmate’s cell may be reasonable for
orderly maintenance of the facility and proper security).
Jones argues that the limitation on storage space is reasonable and is related to legitimate
safety concerns, and therefore, dismissal was proper. We believe that there is more to this case
than an issue of storage space and legitimate security considerations. Sanders alleges harassment
and abuse that have interfered with his right of access to the courts. In his affidavit, Sanders sets
forth facts of verbal abuse, punishment, and harassment that go beyond the issue of storage
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space.
A state may not constitutionally harass, punish, or intimidate prisoners because of their
efforts to assist inmates in gaining reasonable and meaningful access to the courts. Vaughn v.
Trotter, 516 F. Supp. 886, 893 (M.D. Tenn. 1980); see also Smith v. Maschner, 899 F.2d 940,
947 (10th Cir. 1990) (holding that prison officials may not retaliate against or harass an inmate
because of the inmate’s exercise of his right of access to the courts); Campbell v. Beto, 460 F.2d
765, 768 (5th Cir. 1972) (holding that prisoner access to the courts is not to be curtailed or
restricted by threats, intimidation, coercion or punishment).
Jones also argues that Sanders made absolutely no effort to show actual prejudice, which
Jones claims is required to state a claim for violation of the right of access to the courts.
However, Sanders alleged harassment and intimidation that caused “a great deal of mental
anguish and impacted adversely upon [his] right to access the courts.” It is well settled that a
chilling effect on one’s constitutional rights constitutes a present injury in fact. See Muhammad
v. Pitcher, 35 F.3d 1081, 1083-84 (6th Cir. 1994) (quoting G & V Lounge v. Michigan Liquor
Control Comm’n, 32 F.3d 1071, 1076 (6th Cir. 1994)).
We believe that Sanders’s complaint asserts a cognizable claim under 42 U.S.C. § 1983and that the disparities between Sanders’s affidavit and Jones’s affidavit present a genuine issue
of material fact. Sanders stated specific facts in his affidavit that controvert the allegations made
by Jones’s affidavit. In addition, there has been no showing that Sanders does not have the right
to practice jailhouse law. Because a genuine issue of material fact exists, we hold that the grant
of summary judgment was improper.
Sanders also asserts that he alleged a prima facie case of malicious prosection in light of
the fact that Jones issued two groundless disciplinary reports and threatened to issue more if
Sanders did not cooperate. In his complaint, Sanders alleges that “Jones willfully, knowingly
and intentionally carried out threats of disciplinary retaliation.” Jones argues that Sanders has
no constitutionally protected right against being falsely accused of conduct that does not result
in the deprivation of a protected liberty interest. Jones asserts that no protected liberty interests
were implicated by the disciplinary reports.
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It is true that a claim based solely on the filing of a disciplinary report does not state a
constitutional claim. Meadows v. Miller, 855 F. Supp. 219, 221 (W.D. Tenn. 1994). However,
Sanders alleges “disciplinary retaliation.” Jail officials may not retaliate against “jailhouse
lawyers” for assisting indigent inmates. Tuggle v. Barksdale, 641 F. Supp. 34, 36 (W.D. Tenn.
1985); see also Sprouse v. Babcock, 870 F.2d 450, 452 (8th Cir. 1989) (holding that filing of
a disciplinary charge, although otherwise not actionable under § 1983, is actionable under § 1983
if done in retaliation for the filing of a grievance pursuant to established procedures). We believe
the filing of disciplinary charges is actionable under § 1983 if filed in retaliation for exercising
the constitutional right of access to the courts. In his affidavit, Sanders sets forth facts that create
a genuine issue of material fact concerning the reason behind the filing of the disciplinary
reports.
The order of the trial court granting summary judgment to Jones is reversed, and this case
is remanded to the trial court for such further proceedings as necessary. Costs of this appeal are
assessed against the appellee.
_________________________________
W. FRANK CRAWFORD,
PRESIDING JUDGE, W.S.
CONCUR:
____________________________________
ALAN E. HIGHERS, JUDGE
____________________________________
DAVID R. FARMER, JUDGE
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