The gist of the plaintiff's retaliation claim is this: In
September 1989 defendant Britton handed the plaintiff 's
belongings over to his brother-in-law rather than sending
[1 See, e.g., Best v. District of Columbia, No. 92-7196 (D.C.
Cir. 1995) (summarily affirming district court's dismissal of
claim of wrongful videotaping of prisoners); Crawford-El v.
Meese, No. 88-8034 (D.C. Cir. 1990) (summarily affirming
dismissal of challenge to prison diet); Crawford-El v. District
of Columbia Dep't of Corrections, No. 91-2413 (D.D.C. _992)
(dismissing claim for damages resulting from snakebite allegedly
caused by guards' negligence); Crawford-El v. Barry, No.
88-0715, (D.D.C. 1989) (sua sponte dismissing claims of wrongful
deprivation of visitation privileges and of denial of prison
religious classes); Crawford-El v. Shapiro, No 88-2339 (D.D.C.
1988) (dismissing malpractice claim). ]
[2 See Siegert v. Gilley, 500 U.S. 226, 233 (1991) (finding
qualified immunity where plaintiff "failed not only to allege the
violation of a constitutional right that was clearly established
at the time of [the defendant's] actions, but also to establish
the violation of any constitutional right at all"). ]
1
them
directly to his new penal home, intending thereby to wreak
vengeance upon the plaintiff for speaking to the press in 1986
and 1988. This is absurd. The only allegation that even
suggests a retaliatory motive is that more than three years
earlier, on April 21, 1986, the day after the first article was
published, Britton accused the plaintiff of tricking her into
signing the reporter's visitor's pass and made a general threat
that she would "do everything she had to to make it as hard for
him as possible." [3] Whatever probative force the alleged threat
might otherwise have is undercut by the length of time that
elapsed before the "diversion" of the plaintiff 's property. The
plaintiff 's own factual allegations, on the other hand, reveal
an innocent, even beneficent, motive for Britton's handling of
the plaintiff 's property. According to the fourth amended
complaint, the plaintiff 's brother-in-law, who was employed at
the Department of Corrections, "informed plaintiff that he had
been called by Ms. Britton, that she had told him she was
concerned about his legal material and other property, that she
was afraid that the property might get lost were she to send it
from her office to the Lorton Property Officer for mailing to
plaintiff." Appellant's App. 24-25. Thus, it appears Britton
simply wanted to ensure that the property reached the plaintiff
promptly and intact. And it would have had not the plaintiff
himself prevented its delivery. In any event, intent aside, what
Britton did had the effect of providing the plaintiff with
exactly what he claims he wanted: prompt access to his property,
if not in the precise manner he would have chosen (or at the
taxpayer's expense). Thus, the complaint's claim of
unconstitutional retaliation is "nonsensical on its face." See
Adams v. Rice, 40 F.3d 72, 75 (4th Cir. 1994) (so characterizing
inmate's complaint claiming unconstitutional reprisal by prison
officials who, after he requested "protective custody,"
[3 The complaint does contain several allegations which, if true,
may indicate Britton's general hostility toward the plaintiff and
growing impatience with his complaints and litigiousness. While
such evidence might support the plaintiff's now defunct claim of
interference with his first amendment right to petition the
court, it does not demonstrate intent to retaliate for the press
interviews. ]
2
placed
him in segregation, which, as the court noted, gave him "the
protective custody he requested or its approximate equivalent").
Even assuming, against common sense, that Britton's handling
of the plaintiff 's property amounted to some sort of punishment,
he has no claim under 42 U.S.C. § 1983. As the panel noted in
the plaintiff 's first appeal, there is a "general principle that
some showing of injury is a prerequisite to a constitutional tort
action." Crawford-El v. Britton, 951 F.2d 1314, 1322 (D.C. Cir.
1991) (citing Butz v. Economou, 438 U.S. 478, 504 (1978))
(Crawford-El I). In addition, the injury must be of
constitutional dimension: "There is, of course, a de minimis
level of imposition with which the Constitution is not
concerned." Ingraham v. Wright, 430 U.S. 651, 674 (1977). The
plaintiff's retaliation claim is below the de minimis level. The
only alleged injuries attributable to Britton are the costs of
mailing three boxes of belongings to Florida " incurred when the
plaintiff finally allowed his mother to send them " and, perhaps,
a brief delay in receiving them and the consequent cost of
temporarily replacing a few items, as well as the emotional
distress flowing therefrom. [4] Such slight harm does not cross
the constitutional threshold. Cf. Buthy v. Commissioner of
Office of Mental Health, 818 F.2d 1046, 1050 (2d Cir. 1987)
(holding that state mental institution rule requiring forensic
unit patients to remain awake for fixed 16-hour period is "a de
minimis imposition on individual liberty" that cannot support due
process claim); Walsh v. Louisiana High Sch. Athletic Ass'n, 616
F.2d 152, 158 (5th Cir. 1980) (rejecting student's challenge to
"student transfer rule," making student attending high school
outside his home district ineligible to participate in
interscholastic athletics for one year, because of "the de
minimis nature of the burden placed on the plaintiffs' free
exercise of religion"). It is therefore redressable, if at all,
through a local conversion suit, not in federal court under
section 1983. See Crawford-El I, 951
[4 Any other damages resulted not from Britton's decision but
from the plaintiff's own intransigence. It is even doubtful that
he would have suffered delay or replacement costs if he had
allowed his mother to forward his belongings promptly. ]
3
F.2d at 1318 ("At worst,
the act might constitute a common law conversion...."); Paul v.
Davis, 424 U.S. 693, 699-701 (1976) (state law tort does not a
constitutional deprivation make).
It is true that an ordinarily permissible act may become a
constitutional deprivation if performed in retaliation for the
exercise of a first amendment right. See, e.g., Perry v.
Sindermann, 408 U.S. 593 (1972) (decision not to renew untenured
professor's contract); Cornell v. Woods, 69 F.3d 1383, 1387-88
(8th Cir.1995) (transfer of inmate to different prison);
Meriwether v. Coughlin, 879 F.2d 1037 (2d Cir.1989) (change in
inmate's work assignment); Jackson v. Cain, 864 F.2d 1235 (5th
Cir. 1989) (filing disciplinary charges). The threshold injury
requirement nevertheless remains. A retaliation claim is
actionable precisely "because retaliatory actions may tend to
chill individuals' exercise of constitutional rights." American
Civil Liberties Union of Md., Inc. v. Wicomico County, 999 F.2d
780, 785 (4th Cir. 1993) (citing Perry v. Sindermann, 408 U.S. at
597). Thus, the "test" for whether one exists "is whether the
adverse action taken by the defendants is likely to chill the
exercise of constitutionally protected speech." McGill v. Board
of Educ., 602 F.2d 774, 780 (7th Cir. 1979) (citing Pickering v.
Board of Educ., 391 U.S. 563 (1968)); see also DiMeglio v.
Haines, 45 F.3d 790, 806 (4th Cir. 1994) ("Not every restriction
is sufficient to chill the exercise of First Amendment rights,
nor is every restriction actionable, even if retaliatory.");
Bart v. Telford, 677 F.2d 622, 625 (7th Cir. 1982) ("It would
trivialize the First Amendment to hold that harassment for
exercising the right of free speech was always actionable no
matter how unlikely to deter a person of ordinary firmness from
that exercise."). The plaintiff's claim flunks the test. It is
difficult to imagine that the minimal adverse effect (if any) of
Britton's actions was likely to chill or deter him (or any
reasonable person) from exercising his first amendment rights.
Thus, even if retaliatory, Britton's conduct cannot give rise to
a constitutional cause of action. See DiMeglio v. Haines, 45
F.3d at 806-07 (stating that claim of retaliatory reassignment of
zoning investigator "to a geographic subset of the very region
4
from which he formerly had derived his zoning assignments"
"likely would not be sufficiently adverse to implicate the First
Amendment"); Raymon v. Alvord Indep. Sch. Dist., 639 F.2d 257
(5th Cir. March Unit A 1981) (holding that student's claim of
retaliatory lowering of algebra grade, resulting in
"insignificant decrease in her overall grade point average" that
did not affect her class rank, was "patently insubstantial").
In sum, the plaintiff's meritless claims should have been
long since booted and, in any event, should never have been
dignified with en banc review. Nevertheless, the issues have
been joined and I concur in the plurality's disposition of them.
Edwards Opinion
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