2. Whether a Jury Could Reasonably Find Clear and Convincing Evidence of Retaliatory Action. The Fourth Amended Complaint alleges a variety of encounters between Crawford-El and Britton from which plaintiff believes it can be inferred that the misdelivery of his goods must have been in retaliation for various activities that are protected by the First Amendment.
prisoners prepare administrative grievances. According to Crawford-El, Britton deemed him "too big for his britches."
El with the firecracker metaphor and also quoted him as claiming that the prisoners sent to Spokane were "the civil litigants of Lorton who have been put here to get us out of their hair so our lawsuits will be dismissed on procedural grounds." Shortly after the publication of this article, according to Crawford-El, Britton told a Spokane County Jail official that Crawford-El was "a legal troublemaker," meaning, according to the complaint, "a prisoner who asserts her or his legal rights, or seeks administrative or judicial redress of grievances." As we noted before, "even prison officials free of hostility toward Crawford-El might regard "troublemaker' as an apt moniker." Crawford-El, 951 F.2d at 1319.
sent to him as soon as she received it. Shortly afterward, he noticed that some other prisoners returning from Washington State had got their property. Just before he was transferred, he checked with a Lorton "Property Officer" named Ward, who told him that he could have his property sent to him at his final destination by writing a request to that effect after arrival at that final destination. At still another intermediate stop, the federal prison in Petersburg, Virginia, Crawford-El learned from other D.C. prisoners that Britton had been calling their families asking them to pick up the prisoners' property because otherwise she would throw it away. He called his parents, who told him his brother-in-law Jesse Carter had picked up his boxes. (Crawford-El was "upset" at this, since he believed he would have difficulty getting permission to receive the property once it had left the prison system.) According to Crawford-El's own allegation in the Fourth Amended Complaint, Carter told Crawford-El that Britton had told him that she was concerned about Crawford-El's legal materials and other property and was afraid the boxes would be lost if she sent them to the Lorton Property Officer for mailing to Crawford-El, and that federal prisons would not accept shipments of D.C. prisoner property. That account meshes with Britton's affidavit, which says that she asked Carter to take Crawford-El's property "only to insure its safety and protection from loss, and for no other reason whatsoever." (Britton also stated that "we had been advised by the Federal Bureau of Prisons that they would not accept the personal property of the prisoners.") But Crawford-El also says that Britton told Carter that Crawford-El "should be happy she did not throw [his property] in the trash."
The letter also said that there were "significant differences among DCDOC and BOP property policies and differences between individual BOP facilities" and noted that "[i]n special cases, we ask that DCDOC contact individual facility Inmate Systems staff for permission prior to mailing any inmate personal property to a BOP facility." Though Crawford-El's mother forwarded the boxes on to him at the prison at Marianna, Florida, Crawford-El had some difficulty getting them, as he had expected. Crawford-El asserts that this was because they arrived outside prison channels.
phoned other D.C. prisoners' families to ask them to pick up those prisoners' property at Lorton - behavior further reducing the chance that Britton's treatment of Crawford-El had any retaliatory purpose. In short, a jury could not reasonably find that Crawford's nonconclusory assertions constitute clear and convincing evidence of unconstitutional intent. On remand, Crawford-El may attempt to bolster his evidence - perhaps in part through discovery, if by amplifying his independent assertions he secures district court permission to conduct discovery pursuant to Judge Ginsburg's separate opinion, which is controlling on the issues as the opinion consistent with the disposition on the narrowest grounds, i.e., a "common denominator" of the reasoning of the majority, see King v. Palmer, 950 F.2d 771, 780-81 (D.C. Cir. 1991) (en banc)). If he adds no evidence, the district court should grant any future motion for summary judgment by Britton on the federal claims against her.