Michael Ray Hall v. State

HALL V. STATE

NO. 10-90-073-CR

IN THE

COURT OF APPEALS

FOR THE

TENTH DISTRICT OF TEXAS

AT WACO

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          MICHAEL RAY HALL,

                                                                                            Appellant

          v.

          THE STATE OF TEXAS,

                                                                                            Appellee

* * * * * * * * * * * * *

From the 54th Judicial District Court

McLennan County, Texas

Trial Court # 90-97-C

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O P I N I O N

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          Appellant was charged with the felony offense of aggravated assault on a peace officer enhanced by two prior felonies. See Tex. Penal Code Ann. § 22.02 (Vernon Supp. 1991). He was found guilty by a jury and assessed 62 years in prison. We will affirm.

          Appellant argues that the crime of evading arrest should have been included in the charge, as he requested, because it is a lesser included offense of aggravated assault on a peace officer.

          The Code of Criminal Procedure guides in determining which offenses are lesser included offenses. See Tex. Code Crim. Proc. Ann. art. 37.09 (Vernon 1981). The code reads as follows:

An offense is a lesser included offense if:

(1) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged;

(2) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest suffices to establish its commission;

(3) it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission; or

(4) it consists of an attempt to commit the offense charged or an otherwise included offense.

Id. The procedure for determining whether a charge on a lesser included offense is required utilizes a two-step analysis. Royster v. State, 622 S.W.2d 442, 446 (Tex. Crim App. 1981) (on rehearing). "First, the lesser included offense must be included within the proof necessary to establish the offense charged. Secondly, there must be some evidence in the record that if the defendant is guilty, he is guilty of only the lesser offense." Id. Whether an offense is a lesser included offense will be determined on a case-by-case basis. Broussard v. State, 642 S.W.2d 171, 173 (Tex. Crim. App. 1982).

          In this matter, Appellant argues that evading arrest is a lesser included offense of aggravated assault on a peace officer. At trial, Appellant cited Sutton v. State, which supports the premise that the crime of "resisting arrest" is a lesser included offense of aggravated assault on a peace officer. See Sutton v. State, 548 S.W.2d 697 (Tex. Crim. App. 1977). Sutton, however, does not hold that evading arrest is a lesser included offense. We find no case where "evading arrest" has been found to be a lesser included offense of aggravated assault on a peace officer.

          The elements of evading arrest require that the accused (1) intentionally flee (2) from a person he knows is a peace officer attempting to arrest him or detain him for the purpose of questioning or investigating possible criminal activity. Tex. Penal Code Ann. § 38.04 (Vernon Supp. 1991). The elements of aggravated assault on a peace officer are that the accused (1) intentionally, knowingly, or recklessly cause bodily injury to a peace officer, (2) when the accused knows or has been informed that the person assaulted is a peace officer and (3) while the peace officer is in the lawful discharge of an official duty. Id. at §§ 22.01, 22.02 (Vernon 1989 and Vernon Supp. 1991).

          Thus, the element of intentionally fleeing is not an element of aggravated assault on a peace officer. Evading arrest does not require proof of the same or less facts as the offense charged, but requires proof of more facts and, therefore, fails the first prong of the two-step analysis utilized in Royster v. State. See Royster, 622 S.W.2d at 446 (on rehearing).

          The Appellant's points are overruled and the judgment of the trial court is affirmed.

                                                                       BOBBY L. CUMMINGS

                                                                       Justice

Before Chief Justice Thomas,

          Justice Cummings and

          Justice Vance

Affirmed

Opinion delivered and filed June 13, 1991

Do not publish

ssed the suit with prejudice.  Raising three issues, Brewer appeals.

Application of Section 14.002

            A prison inmate who files suit in a Texas state court pro se and who seeks to proceed in forma pauperis must comply with the procedural requirements set forth in Chapter 14 of the Civil Practice and Remedies Code.  Tex. Civ. Prac. & Rem. Code Ann. §§ 14.002(a), 14.004, 14.005 (Vernon 2002).  Failure to fulfill those procedural requirements will result in dismissal of an inmate’s suit. See Bell v. Texas Dep’t of Crim. Justice-Inst. Div., 962 S.W.2d 156, 158 (Tex. App.—Houston [14th Dist.] 1998, pet. denied).

            Brewer’s first issue complains about the facial unconstitutionality of Chapter 14.  He asserts that, despite his invocation of Chapter 14 by his filing an affidavit of indigence, once the trial court assessed costs and ordered their payment out of his inmate trust account, the continued application of Chapter 14 violates equal protection and is thus unconstitutional because his suit is treated differently than the suit of a non-indigent inmate who paid costs of suit in advance and thus would not be governed by Chapter 14).

            Constitutional violations must be raised in the trial court to be preserved for appellate review.  In re S.A.P., 169 S.W.3d 685, 692 (Tex. App.—Waco 2005, no pet.) (citing In re L.M.I., 119 S.W.3d 707, 710-11 (Tex. 2003)). Because Brewer did not raise his equal protection argument in the trial court, he has not preserved his first issue for appellate review.  Tex. R. App. P. 33.1(a).

Chapter 14 Dismissal

            Generally, the dismissal of inmate litigation under Chapter 14 is reviewed for abuse of discretion.  Hickson v. Moya, 926 S.W.2d 397, 398 (Tex. App.—Waco 1996, no writ).  “To establish an abuse of discretion, an appellant must show the trial court’s actions were arbitrary or unreasonable in light of all the circumstances.  The standard is clarified by asking whether the trial court acted without reference to any guiding rules or principles.”  Spurlock v. Schroedter, 88 S.W.3d 733, 735-36 (Tex. App.—Corpus Christi 2002, no pet.) (internal citations omitted).

Affidavits Relating to the Grievance System

Section 14.005(a) mandates that an inmate who files a claim that is subject to the TDCJ grievance system file an affidavit or unsworn declaration stating the date that his grievance was filed and the date that he received the written grievance decision.  Tex. Civ. Prac. & Rem. Code Ann. § 14.005(a)(1).  The section also mandates the filing of a copy of the written grievance decision.  Id. § 14.005(a)(2).  If an inmate does not strictly comply with section 14.005(a), a trial court does not abuse its discretion in dismissing the claim.  Draughon v. Cockrell, 112 S.W.3d 775, 776 (Tex. App.—Beaumont 2003, no pet.). Brewer’s second issue complains that the trial court abused its discretion for dismissing his suit because of noncompliance with section 14.005(a).

            Brewer filed an original affidavit of grievances and a supplemental affidavit of grievances with his original petition, and Brewer filed a second supplemental affidavit of grievances two weeks later.  In their motion to dismiss, the defendants asserted:  (1) Brewer’s attached grievances refer to retaliation claims against only Simental and Townsend; (2) a copy of the grievance against Simental and Townsend was not included; and (3) Brewer did not grieve against Seigle.  For these reasons, the defendants contended that Brewer did not comply with section 14.005 and Brewer did not exhaust his administrative remedies.

            Brewer filed six detailed grievances pertaining to his claims in this case, as shown by Brewer’s original affidavit of grievances and his two supplemental affidavits of grievances.  The two supplemental affidavits were necessitated by the prison’s need for extensions to investigate two of the grievances (including Brewer’s second (October 19) grievance against Simental and Townsend) and to replace the prison’s notices of extension with the grievances upon Brewer’s receipt.  On appeal, defendants in effect concede that Brewer technically complied with section 14.005(a), and the record reflects such compliance.  Therefore, to the extent the trial court dismissed Brewer’s suit for failure to comply with section 14.005, we find no grounds upon which the trial court could have found a failure to comply, and we conclude that the trial court abused its discretion.  See Spurlock, 88 S.W.3d at 733.

            The other aspect of the defendants’ contention goes to the substance of Brewer’s grievances and the persons whom Brewer was grieving against.[1]  A remedy provided by the statutory prison inmate grievance system is the exclusive administrative remedy available to an inmate for a claim for relief against the department.  Tex. Gov’t Code Ann. § 501.008(a) (Vernon 2004).  “An inmate may not file a claim in state court regarding operative facts for which the grievance system provides the exclusive administrative remedy until: (1) the inmate receives a written decision issued by the highest authority provided for in the grievance system; . . .”  Id. § 501.008(d)(1) (emphasis added).

            The purpose of sections 14.005 and 501.008 is to allow the trial court to ensure that an inmate proceeding in forma pauperis has first used TDCJ’s grievance procedure and has exhausted his administrative remedies through the prison grievance system before filing suit on the same operative facts.  See Spurlock, 88 S.W.3d at 737; Smith v. Texas Dep’t of Crim. Justice-Inst. Div., 33 S.W.3d 338, 341 (Tex. App.—Texarkana 2000, pet. denied).  Other than reviewing a grievance to insure that the inmate’s claim arises from the same operative facts set forth in the grievance, nothing in the grievance system statutes supports the defendants’ contention that the trial court—or an appellate court reviewing a trial court—can or should parse through an inmate’s grievance to determine the nature of the inmate’s claims and whether a person is a proper party based on the grievance’s content.  Accord Johnson v. Johnson, 385 F.3d 503, 522 (5th Cir. 2004) (applying federal exhaustion statute) (“We are mindful that the primary purpose of a grievance is to alert prison officials to a problem, not to provide personal notice to a particular official that he may be sued; the grievance is not a summons and complaint that initiates adversarial litigation.  Cf. Brown[ v. Sikes, 212 F.3d 1205, 1207-10 (11th Cir. 2000)] (rejecting a rule that a prisoner must always name defendants in his grievance).  But, at the same time, the grievance must provide administrators with a fair opportunity under the circumstances to address the problem that will later form the basis of the suit, and for many types of problems this will often require, as a practical matter, that the prisoner’s grievance identify individuals who are connected with the problem.”).

            We have reviewed Brewer’s grievances. They set forth the same operative facts as his petition with great detail.  They provide prison administrators with fair notice of his allegations so that the alleged problem could have been addressed by them, and for each grievance, no administrative response asserted a lack of specificity or inadequacy.  Therefore, to the extent the trial court dismissed Brewer’s suit based on the defendants’ grounds that the grievances did not adequately set forth the claims and parties as in this suit, we find no grounds upon which the trial court could have could have concluded that Brewer failed to comply with sections 14.005 and 501.008 in exhausting his administrative remedies, and we conclude that the trial court abused its discretion.  We sustain Brewer’s second issue.

Frivolousness

            The trial court’s dismissal order states that Brewer’s petition is frivolous.  Brewer’s third issue complains that the trial court’s dismissal for frivolousness is an abuse of discretion.

Section 14.003 allows a trial court to dismiss a suit filed by an indigent inmate, either before or after service of process, if the court finds that the claim is frivolous or malicious.  Tex. Civ. Prac. & Rem. Code Ann. § 14.003(a)(2).  In determining whether the claim is frivolous or malicious, the trial court may consider whether (1) the claim’s realistic chance of ultimate success is slight; (2) the claim has no arguable basis in law or in fact; (3) it is clear that the party cannot prove facts in support of the claim; or (4) the claim is substantially similar to a previous claim filed by the inmate because the claim arises from the same operative facts.  Id. § 14.003(b).

            Standard of Review

            The Texas Supreme Court has expressed doubt about whether a trial court can properly dismiss a suit only because the claim’s realistic chance of ultimate success is slight or because it is clear that the party cannot prove facts in support of the claim.  Johnson v. Lynaugh, 796 S.W.2d 705, 706-07 (Tex. 1990).  Practically speaking, therefore, the trial court is limited to determining whether the claim has an arguable basis in law or fact.  Bohannan v. Texas Bd. of Criminal Justice, 942 S.W.2d 113, 115 (Tex. App.—Austin 1997, writ denied).  When the trial court dismisses a claim without conducting a fact hearing, we are limited to reviewing whether the claim had an arguable basis in law.  Sawyer v. Texas Dep’t of Criminal Justice, 983 S.W.2d 310, 311 (Tex. App.—Houston [1st Dist.] 1998, pet. denied); Leon Springs Gas Co. v. Rest. Equip. Leasing Co., 961 S.W.2d 574, 579 (Tex. App.—San Antonio 1997, no pet.); Bohannan v. Texas Bd. of Criminal Justice, 942 S.W.2d at 115; In re Wilson, 932 S.W.2d 263, 265 (Tex. App.—El Paso 1996, no writ).

 

Smith, 33 S.W.3d at 340; see also Spurlock, 88 S.W.3d at 736.

 

            The issue before us is whether the trial court properly determined there was no arguable basis in law for the suit.  Spurlock, 88 S.W.3d at 736 (citing Lentworth v. Trahan, 981 S.W.2d 720, 722 (Tex. App.—Houston [1st Dist.] 1998, no pet.)).  A fact hearing on frivolousness is necessary only if the claim has an arguable basis in law.  Johns v. Johnson, 2005 WL 428465, at *1 (Tex. App.—Waco Feb. 23, 2005, no pet.) (mem. op.) (citing Denson v. T.D.C.J.-I.D., 63 S.W.3d 454, 459 (Tex. App.—Tyler 1999, pet. denied)).  In this case, the trial court held no fact hearing on the defendants’ motion to dismiss.  Thus, its basis for determining that Brewer’s claims were frivolous could not have been because it found they had no arguable basis in fact, but was because they had no arguable basis in law.  Id.  The issue of whether there was an arguable basis in law is a legal question that we review de novo.  Id.; Moreland v. Johnson, 95 S.W.3d 392, 394 (Tex. App.—Houston [1st Dist.] 2002, no pet.).

            To determine whether the trial court properly decided there was no arguable basis in law for Brewer’s suit, we examine the types of relief and causes of action that Brewer pled in his petition to determine whether, as a matter of law, the petition stated a cause of action that would authorize relief.  Johns, 2005 WL 428465, at *1; Spurlock, 88 S.W.3d at 736.  We review and evaluate pro se pleadings by standards less stringent than those applied to formal pleadings drafted by lawyers.  Spurlock, 88 S.W.3d at 736 (citing Thomas v. Collins, 860 S.W.2d 500, 503 (Tex. App.—Houston [1st Dist.] 1993, writ denied)).  Also, in reviewing the dismissal of Brewer’s suit, we are bound to take as true the allegations in his petition.  Jackson v. Tex. Dep’t Crim. Justice-Inst. Div., 28 S.W.3d 811, 813 (Tex. App.—Corpus Christi 2000, pet. denied).

            Section 1983

            Brewer’s suit asserts claims under 42 U.S.C § 1983.  Section 1983 provides a cause of action and remedy when any “person” acting under color of state law deprives another of rights, privileges, or immunities protected by the U.S. Constitution or laws.  Gordon v. Scott, 6 S.W.3d 365, 369 (Tex. App.—Beaumont 1999, pet. denied) (citing Thomas, 960 S.W.2d at 109).  A section 1983 action will lie against state officials in their personal or individual capacities.  Id.  Brewer sued all seven defendants in their individual capacities.

            Brewer’s petition asserts two distinct claims:[2]  (1) retaliation for Brewer’s exercise of his constitutional right to access the courts; and (2) conspiracy to retaliate for attempting to exercise his constitutional right to access the courts.

            Retaliation

            To prevail on a section 1983 retaliation claim, an inmate “must be able to show more than a personal belief that he is the victim of retaliation.”  Johns, 2005 WL 428465, at *3 (citing Johnson v. Rodriguez, 110 F.3d 299, 310 (5th Cir. 1997)).

[A]n inmate must be able to establish:  i) a specific constitutional right; ii) the defendants’ intent to retaliate against him for exercising that right; iii) a retaliatory adverse act; and iv) causation—a showing that “but for the retaliatory motive, the complained of incident would not have occurred.”  McDonald v. Steward, 132 F.3d 225, 231 (5th Cir. 1998).

 

Id.  Indisputably, “a prison official may not retaliate against or harass an inmate for exercising the right of access to the courts, or for complaining to a supervisor about a guard’s misconduct.”  Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995).  The purpose of allowing retaliation claims under section 1983 is to ensure that prisoners are not unduly discouraged from exercising their constitutional rights.  Morris v. Powell, 449 F.3d 682, 686 (5th Cir. 2006).

            i.  specific constitutional right

            “An inmate has a constitutional right of access to courts.  Tighe v. Wall, 100 F.3d 41, 42 (5th Cir. 1996).  That access must be adequate, effective, and meaningful.  Bounds v. Smith, 430 U.S. 817, 828, 97 S. Ct. 1491, 52 L. Ed. 2d 72 (1977).”  Johns, 2005 WL 428465, at *2.  Brewer’s petition plainly meets this element.

            ii.  intent to retaliate

            The inmate must “allege a chronology of events from which retaliation may plausibly be inferred.”  Woods, 60 F.3d at 1166 (quoting Murphy v. Lane, 833 F.2d 106, 108-09 (7th Cir. 1987) (holding that the plaintiff’s complaint “set forth a chronology of events from which retaliatory animus on the part of defendants could arguably be inferred” sufficient to overcome a motion to dismiss)); see also Johns, 2005 WL 428465, at *3 (inmate’s petition failed to allege facts or chronology of events showing retaliation).  Brewer’s 26-page petition more than adequately details a chronology of events from which the defendants’ retaliatory animus could arguably be inferred.  Brewer pleads, for example, that the defendants knew he had a court deadline, that the defendants knew he was assigned to work utility from 1:00 p.m. to 9:00 p.m., that the defendants knew that he could not obtain law-library lay-ins during his assigned work hours, that the defendants knew he had law-library lay-ins at 5:50 a.m., and that the defendants told him that they did not care that he had lay-ins because they could make him work whenever they wanted to, including when Brewer had a scheduled lay-in or was actually in the law library.[3] Moreover, Brewer pleads that, on October 18, while attending his 5:55 a.m. to 7:55 a.m. law library session, at 6:54 a.m. Simental called the library and told the officer on duty that Brewer should not have a lay-in and told the officer to send Brewer to meet with Simental at the C-Hall Desk.  Brewer met Simental and Townsend there, and they both stated, “We have already told you that you would not be attending the law library.”  They then placed Brewer under cell restriction, and when Brewer said that he would file another grievance against them, they both stated, “when we are done with you, you won’t know how to spell grievance.”

                Brewer’s petition adequately pleads retaliatory intent.  See Martin v. Ezeagu, 816 F. Supp. 20, 24 (D.D.C. 1993) (inmate adequately pled ongoing pattern of harassment, interference, and exclusion from law library).

            iii.  retaliatory adverse act

            Brewer’s 26-page petition details the numerous times between October 7 and October 19 that Simental, at times alone and at times with Townsend and Davis, removed Brewer from the law library because he allegedly was not reporting to utility work in Ad. Seg. at 5:00 a.m.  The petition details the several allegedly false disciplinary charges that were filed against him by Simental, Townsend, Davis, and Duke on the ground that Brewer was not reporting to utility work in Ad. Seg. at 5:00 a.m., yet Brewer pleads that he was already scheduled to work a 1:00 p.m. to 9:00 p.m. utility shift and he had law-library lay-ins starting at 5:50 a.m.  Brewer’s petition details the disciplinary punishment he received as a result of those charges:  commissary restrictions, cell restrictions, loss of contact visitation, property restriction, and line class reductions.

            Brewer’s petition adequately pleads retaliatory adverse acts.

            iv.  causation

            Brewer’s petition adequately details that, but for the defendants’ orders for him to report to work during his law library lay-ins, the disciplinary charges and the resulting punishments would not have occurred.

            In conclusion, in our de novo review of Brewer’s petition, we hold that his section 1983 retaliation claim has an arguable basis in law.  Accordingly, the trial court abused its discretion in dismissing it as frivolous.  We sustain in part Brewer’s third issue.

            Conspiracy

            Brewer alleges that several other prison officials or employees conspired with Simental and his cohorts to assist in their retaliation against Brewer.  Brewer alleges that Janet C. Taylor, an administrative assistant, assisted Simental by changing Brewer’s work hours in the prison computer system in the middle of Simental’s course of conduct to keep Brewer out of the library and by not notifying Brewer of this change (he alleged receiving notice of the changed hours after Simental filed a disciplinary report charging Brewer with not reporting to work as ordered and scheduled). [4]

            Brewer alleges that John D. Seigle, a corrections sergeant and law library supervisor, assisted Simental on October 19 by acceding to Simental’s demand that Brewer’s lay-in for that day, which Seigle had issued, be taken back.  According to Brewer, while he was in the law library, Seigle was called to Simental’s office, and when Seigle returned, he said that Simental had accused him of “taking sides” with an offender instead of with a co-worker and ranking officer.

            Lindsay Lewis, the Warden’s grievance investigator, and Robert Losack, a corrections captain and disciplinary hearing officer, are alleged to have assisted Simental in the grievance and disciplinary process by ignoring evidence and preventing Brewer’s access to evidence to defend his claims and defenses.  Brewer also alleges that Lewis and Losack had the authority to stop Simental’s retaliation but failed to do so. Instead, they removed Brewer’s Ad. Seg. restriction, denied Brewer’s grievances, and disciplined Brewer.

            In a federal suit with similar claims alleged, the district court stated the applicable law:

            To allege a claim of conspiracy to deprive a plaintiff of his constitutional rights, a plaintiff must allege, “(1) a conspiracy involving two or more persons; (2) for the purpose of depriving, directly or indirectly, a person or class of persons of the equal protection of the laws; and (3) an act in furtherance of the conspiracy; (4) which causes injury to a person or property, or deprivation of any right or privilege of a citizen of the United States.”  Hilliard v. Ferguson, 30 F.3d 649, 652-53 (5th Cir. 1994). Where all of the defendants are members of the same collective entity, however, the conspiracy does not involve two or more people.  Id. at 653; see also Moody v. Jefferson Parish Sch. Bd., 803 F. Supp. 1158, 1166 (E.D. La. 1992) (School Board, Principal, Vice-Principal, and various teachers are all employed by the Jefferson Parish School Board and, thus, are a single entity), aff’d, 2 F.3d 604 (5th Cir. 1993); Hankins v. Dallas Indep. Sch. Dist., 698 F. Supp. 1323, 1330 (N.D. Tex. 1988) (high school and its officials constitute a single entity); Chambliss v. Foote, 421 F. Supp. 12, 15 (E.D. La. 1976) (“the university and its officials are considered as constituting a single legal entity which cannot conspire with itself”), aff’d, 562 F.2d 1015 (5th Cir. 1977).

 

Brown v. Carr, 2008 WL 2571713, at *5 (S.D. Tex. June 26, 2008).  Because all of the defendants were members of the same collective entity (TDCJ-ID’s McConnell Unit), the plaintiff did not state a separate legal claim for conspiracy apart from his retaliation claim.  See id.

            Brewer’s conspiracy claim suffers from the same flaw; all of the defendants who allegedly conspired are or were Wynne Unit employees at the time of the alleged acts.  Accordingly, they could not have conspired under the applicable law to afford Brewer an actionable section 1983 conspiracy claim, and that claim thus has no arguable basis in law.[5] Accordingly, the trial court did not abuse its discretion in dismissing it as frivolous.  We overrule in part Brewer’s third issue.

Conclusion

            Having sustained Brewer’s second issue and his third issue in part, we reverse the trial court’s dismissal order and remand this cause for further proceedings consistent with this opinion.

 

 

BILL VANCE

Justice

 

 

Before Chief Justice Gray,

            Justice Vance, and

            Justice Reyna

            (Chief Justice Gray dissents.  A separate opinion will not issue.)

Reversed and remanded

Opinion delivered and filed September 10, 2008

[CVPM]

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[1]               The Fifth Circuit has summarized the TDCJ grievance guidelines for inmates:

The record in this case includes portions of the guidelines that TDCJ provides prisoners regarding how to file grievances.  Among other things, the rules direct inmates to write “briefly and clearly” but also to “be very specific about your grievance or your problem.”  They state that a grievance should contain facts, not legal words or conclusions.  They further direct the prisoner to “[t]ell us what action you want us to take to resolve your grievance or problem,” but they specifically state that a prisoner should “not ask us to take disciplinary action against employees.”

Johnson v. Johnson, 385 F.3d 503, 522 (5th Cir. 2004).

[2]               We do not discern in Brewer’s petition a separate claim for the deprivation of Brewer’s access to courts.  Generally, and at least for an isolated deprivation of an inmate’s access to court by denying or interfering with an inmate’s access to the law library, the inmate must show actual injury, usually in the form of legal prejudice in the litigation the inmate is involved in.  See Johns, 2005 WL 428465, at *2.  But when an inmate alleges an ongoing pattern of denial of access and interference, actual injury need not be shown.  See Martin v. Ezeagu, 816 F. Supp. 20, 24 (D.D.C. 1993).  On remand, if Brewer disagrees with our assessment of his petition, he would not be precluded from explicitly pleading such a claim because the facts in his grievances and petition plainly support one.

[3]              Notable here is the defendants’ contention in their brief, (Defendants-Appellees’ Br. at 11), along with several of the prison administration’s grievance responses, to the effect that “offenders may be ordered to report to work at any time.” (C.R. 0051, 0055, 0057, 0059, 0061, 0063) [Emphasis added.]  This position and this alleged prison policy heightens the analysis of Brewer’s retaliation claim because it raises the specter of pretext in the denial of access to the law library, which segues into the inmate disciplinary process.  I.e., a prison guard or officer who seeks to deny an inmate access to the courts can simply order him to report to work when the inmate has a law library pass, and when the inmate disobeys the order, the guard or officer files a disciplinary charge against the inmate, who is then punished for violating policy.

               The Fifth Circuit has addressed the thorny issue of an inmate’s section 1983 retaliation claim arising out of an allegedly false disciplinary charge and the tension between an inmate’s exercise of constitutional rights and the wide latitude needed by prison officials in the control and disciplining of inmates:

While we remain fully supportive of the proposition that prison officials must have wide latitude in the control and disciplining of inmates, that “latitude does not encompass conduct that infringes on an inmate's substantive constitutional rights.”  Within that limitation we intend no undue restriction of actions legitimately motivated by concerns of prison order and discipline. . . .

To assure that prisoners do not inappropriately insulate themselves from disciplinary actions by drawing the shield of retaliation around them, trial courts must carefully scrutinize these claims.  To state a claim of retaliation an inmate must allege the violation of a specific constitutional right and be prepared to establish that but for the retaliatory motive the complained of incident—such as the filing of disciplinary reports as in the case at bar—would not have occurred.  This places a significant burden on the inmate.  Mere conclusionary allegations of retaliation will not withstand a summary judgment challenge.  The inmate must produce direct evidence of motivation or, the more probable scenario, “allege a chronology of events from which retaliation may plausibly be inferred.”

Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995) (footnotes and citations omitted).

                Regardless of that tension, an “action motivated by retaliation for the exercise of a constitutionally protected right is actionable, even if the act, when taken for a different reason, might have been legitimate.”  Id. at 1165 (citing Mt. Healthy City School Distr. Bd. of Ed. v. Doyle, 429 U.S. 274, 97 S. Ct. 568, 50 L. Ed. 2d 471 (1977); Jackson v. Cain, 864 F.2d 1235 (5th Cir. 1989); Smith v. Maschner, 899 F.2d 940 (10th Cir. 1990); Franco v. Kelly, 854 F.2d 584 (2d Cir. 1988)).  In addition, several of the administration responses to Brewer’s grievances (C.R. 0069, 0071, 0085) confirm his claim that he had and was using law library lay-ins when Simental or others ordered him to work outside of his assigned work schedule, thus interfering with his library access.  Thus, we are not hesitant to find that despite the apparently legitimate disciplinary charges, Brewer’s section 1983 retaliation claim has an arguable basis in law.

[4]               The administration response to one of Brewer’s grievances appears to support this allegation; it notes that there was “a written notice of change to job hours as of 10-20-2005 at 9:26 am.” (C.R. 0061).

[5]               The fact that Brewer’s conspiracy claim is not actionable does not render the allegations—which are obviously disturbing if true—any less egregious, especially with Brewer’s access-to-courts constitutional backdrop.  See Wood, 60 F.3d at 1165 (noting other circuit’s opinion that “an allegation of retaliatory disciplinary charges could give rise to either an independent section 1983 action or be part of a procedural due process review of the disciplinary hearing”) (citing Smith v. Maschner, 899 F.2d 940, 946-48 (10th Cir. 1990)); see also id. (“the court with which [the inmate] sought contact, and not his jailer, will determine the merits of his claim”) (quoting Andrade v. Hauck, 452 F.2d 1071, 1072 (5th Cir. 1971)).