Jerome McFadden v. S.B. Lewis , 517 F. App'x 149 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-7982
JEROME MCFADDEN,
Plaintiff – Appellant,
v.
S.B. LEWIS, Associate Warden; FRANK MURSIER, Major McCI; L.
CARTELEDGE, Warden at McCI McCormick Correctional
Institution,
Defendants - Appellees.
Appeal from the United States District Court for the District of
South Carolina, at Rock Hill. Mary Geiger Lewis, District
Judge. (0:12-cv-01627-MGL)
Submitted: March 20, 2013 Decided: April 2, 2013
Before NIEMEYER, DAVIS, and KEENAN, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Jerome McFadden, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jerome McFadden appeals the district court’s order
dismissing his 42 U.S.C. § 1983 (2006) complaint as frivolous
under 28 U.S.C. § 1915(e)(2)(B) (2006). McFadden’s complaint
alleged that prison officials had retaliated against him for his
filing of a prior § 1983 action by transferring him to a
facility at which he feared for his safety, terminating him from
his prison job, placing him in administrative segregation,
verbally and sexually harassing him, and filing false
disciplinary charges against him. Although the district court
assessed each individual action of which McFadden complained, it
did not evaluate his assertion that the individual acts were
motivated by an intent to retaliate against him because he had
filed a previous lawsuit.
Retaliation against an inmate for the exercise of his
right to access the courts states a cognizable claim.
Hudspeth v. Figgins, 584 F.2d 1345, 1347-48 (4th Cir. 1978).
Such retaliation by an official is actionable even if the act
would have been proper if taken for different reasons. American
Civ. Liberties Union v. Wicomico Cnty., 999 F.2d 780, 785 (4th
Cir. 1993). In order to state a retaliation claim, the
“plaintiff must allege either that the retaliatory act was taken
in response to the exercise of a constitutionally protected
right or that the act itself violated such a right.” Adams v.
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Rice, 40 F.3d 72, 75 (4th Cir. 1994). The plaintiff must allege
sufficient facts to warrant concern that the alleged retaliation
might have a chilling effect on the exercise of the right to
access the courts and show that he suffered more than de minimis
inconvenience. Wicomico, 999 F.2d at 785-86 & n.6. The
prisoner need not succumb entirely or even partially to the
threat; it is sufficient that the retaliation was intended to
limit the prisoner’s right of access to the court “and was
reasonably calculated to have that effect.” Hudspeth, 584 F.2d
at 1348. However, the plaintiff must allege specific facts
supporting his claim of retaliation; bare assertions of
retaliation do not establish a claim of constitutional
dimension. Adams, 40 F.3d at 74-75.
Here, because the district court failed to consider
McFadden’s claim that each of the specific actions he complained
of were taken in retaliation for his filing of a previous § 1983
complaint, we vacate the district court’s order and remand for
consideration of this claim in the first instance. See Adams,
40 F.3d at 75. In so doing, we express no opinion as to the
merits of McFadden’s claims. We dispense with oral argument
because the facts and legal contentions are adequately presented
in the materials before this court and argument would not aid
the decisional process.
VACATED AND REMANDED
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