Cressionnie v. Hample ( 2006 )


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  •                                                                 United States Court of Appeals
                                                                             Fifth Circuit
                                                                          F I L E D
                     IN THE UNITED STATES COURT OF APPEALS
                                                                            June 6, 2006
                               FOR THE FIFTH CIRCUIT
                                                                      Charles R. Fulbruge III
                                                                              Clerk
                                    No. 04-61022
                                  Summary Calendar
    
    
                              CLINTON L. CRESSIONNIE,
                                                 Plaintiff-Appellant,
    
                                        versus
    
     JEFFERY L. HAMPLE, in his individual and official capacities as
         Internal Audit Investigator of Mississippi Department of
     Corrections; MARVIN OVERSTREET, in his individual and official
         capacities as Internal Audit Investigator of Mississippi
       Department of Corrections; PATTY LEGG, in her individual and
     official capacities as State Hearing Officer; CHRISTOPHER EPPS,
       in his individual and official capacities as Commissioner of
                  Mississippi Department of Corrections,
                                             Defendants-Appellees.
    
    
                Appeal from the United States District Court
                  For the Northern District of Mississippi
    
    
                             (USDC No. 4:04-CV-186-GHD)
    
    Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
    
    PER CURIAM:*
    
          Proceeding    in    forma    pauperis,    Clinton    L.     Cressionnie,
    
    Mississippi prisoner No. 22155, brought claims under 42 U.S.C.
    
    § 1983 against various officials in the Mississippi Department of
    
    Corrections (“MDOC”), alleging retaliation for the exercise of
    
    constitutional     rights.        Prior   to   service    of    the   defendant
    
    officials, the district court dismissed Cressionnie’s claims under
    
    
          *
           Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
    should not be published and is not precedent except under the limited
    circumstances set forth in 5TH CIR. R. 47.5.4.
    28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim upon
    
    which relief may be granted.               We affirm in part and vacate and
    
    remand in part for further proceedings.
    
                                               I
    
         As   we    must,    we   take   all       facts   alleged   in   Cressionnie’s
    
    petition as true.       Cressionnie alleges the following: On December
    
    15, 2003, he made a phone call to his sister using the personal
    
    identification number of Patrick Presley, another inmate at the
    
    Mississippi State Penitentiary in Parchman, Mississippi.                     Later
    
    that same night, Presley committed suicide. Prison officials began
    
    an investigation.       Two days later, on December 17, 2003, defendant
    
    Jeffery Hample, an investigator for the Internal Audit Division of
    
    the MDOC,      questioned     Cressionnie        regarding   Presley’s    suicide.
    
    Cressionnie admitted using Presley’s PIN to call his sister.
    
    Cressionnie asked Hample whether Hample would issue Cressionnie a
    
    Rule Violation Report (“RVR”) for using Presley’s PIN, but Hample
    
    did not respond.        Cressionnie alleges that Hample had 24 hours to
    
    issue an RVR under MDOC operating procedures, but that Hample did
    
    not do so.
    
         On December 30, 2003, Cressionnie mailed letters to Presley’s
    
    mother, Presley’s wife, and their attorney, stating his belief that
    
    Presley committed suicide because of a new prisoner classification
    
    system at Parchman that resulted in some prisoners, including
    
    Presley, being placed in isolation for extended periods of time.
    
    
    
                                               2
    The next day, December 31, 2003, a local newspaper quoted defendant
    
    Christopher   Epps,   Commissioner       of    the   MDOC,   as   stating   that
    
    Parchman officials had no role in causing Presley’s suicide.                Epps
    
    attributed Presley’s suicide to a “Dear John” letter Presley
    
    recently received from his wife.              On January 12, 2004, another
    
    article regarding Presley’s suicide was in the paper. This article
    
    included references to statements by, and quotes from, an anonymous
    
    inmate at Parchman that blamed the suicide on the new prisoner
    
    classification system. Cressionnie alleges that the statements and
    
    quotes from the anonymous inmate came from the letters he sent to
    
    Presley’s family and attorney.
    
         Eight days after the letter quoting the anonymous inmate,
    
    defendant Hample issued an RVR to Cressionnie for unauthorized use
    
    of telephone privileges––presumably for the use of Presley’s PIN.
    
    Cressionnie requested that Hample appear as a witness at the
    
    hearing on the RVR.     Hample refused to give a statement to the
    
    Parchman official investigating the RVR because of the sensitive
    
    nature of his discussion with Cressionnie, but Hample stated that
    
    he would appear at the hearing.
    
         Cressionnie’s hearing on the RVR occurred on February 19,
    
    2004.   Hample did not appear; rather, defendant Marvin Overstreet,
    
    also an investigator with the Internal Audit Division of the MDOC,
    
    appeared in Hample’s place.    Cressionnie asserted that the RVR was
    
    issued in retaliation for his statements appearing in the local
    
    newspaper; Overstreet stated that he should charge Cressionnie with
    
                                         3
    obstruction       of     the    investigation         into           Presley’s      suicide.
    
    Cressionnie alleges that defendant Patty Legg, a hearing officer at
    
    Parchman,    found     Cressionnie      guilty        of       the    RVR   prior    to   the
    
    completion of the hearing. Further, Cressionnie alleges that about
    
    a month after the hearing, he was told by an unnamed officer at
    
    Parchman that Legg had been ordered to find Cressionni guilty of
    
    the RVR.
    
           With the guilty finding on the RVR, Cressionnie had 26 points
    
    in the prisoner classification system, which kept him in isolation.
    
    Cressionnie alleges that were it not for the RVR, he would only
    
    have 21 points, which would have allowed him to return to the
    
    general population.
    
           Cressionnie brought claims under 42 U.S.C. § 1983 against
    
    Hample, Legg, and Overstreet, alleging that they participated in
    
    the issuance of the RVR and the guilty finding in retaliation for
    
    Cressionnie sending letters to Presley’s family and their attorney
    
    that included criticism of the MDOC and Parchman.                             Cressionnie
    
    brought claims under 42 U.S.C. § 1983 against Epps, alleging that
    
    Epps ordered that the RVR be issued and that Cressionnie be found
    
    guilty in retaliation for the same letters.                           Cressionnie sought
    
    expungement of the RVR and the guilty finding, along with a return
    
    to the general prison population at Parchman.                          He also sought an
    
    unspecified amount of nominal, compensatory, and punitive damages
    
    from   all   of    the    defendants.           The    district         court    dismissed
    
    Cressionnie’s      claims      under   28   U.S.C.         §    1915(e)(2)(b)(ii)         for
    
                                                4
    failure        to   state   a   claim    upon    which   relief    can   be   granted.
    
    Cressionnie appealed.
    
                                                II
    
           We first determine whether Cressionnie’s appeal was timely.
    
    Federal Rule of Appellate Procedure 4(a)(1)(A) requires that the
    
    notice of appeal in a civil action be filed within 30 days of entry
    
    of the judgment or order from which appeal is taken.                      If a party
    
    files a timely motion under Federal Rule of Civil Procedure 59, the
    
    time to file an appeal runs from the entry of the order disposing
    
    of the Rule 59 motion.1           A Rule 59 motion is timely if it is filed
    
    no later than 10 days after entry of the judgment,2 and the
    
    district court may not extend time for filing a Rule 59 motion.3
    
           Here, Cressionnie filed a “motion for reconsideration” more
    
    than 10 days after the entry of judgment.                We have previously noted
    
    that       “[t]he    Federal     Rules    do     not   recognize    a    ‘motion   for
    
    reconsideration’ in haec verba.”4                If a motion so named challenges
    
    the prior judgment on the merits, we will treat it as a motion ‘to
    
    alter or amend’ the judgment under Rule 59(e) or a motion for
    
    ‘relief from judgment’ under Rule 60(b).5                   Cressionnie’s motion
    
    
           1
             Fed. R. App. P. 4(a)(4)(A).
           2
             Fed. R. Civ. P. 59(e).
           3
             Fed. R. Civ. P. 6(b).
    
           4
             Lavespere v. Niagara Mach. & Tool Works, Inc., 
    910 F.2d 167
    , 173 (5th Cir.
    1990).
           5
             Id.
    
                                                5
    came after the 10-day window for a Rule 59 motion expired, thus it
    
    must be treated as a motion for relief from judgment under Rule 60.
    
    A Rule 60 motion, however, does not suspend the time for filing a
    
    notice of appeal. Thus, Cressionnie’s notice of appeal, filed more
    
    than 30 days after the entry of judgment, was facially untimely.
    
          Despite     this,    the    Supreme     Court     imposed    a    “unique
    
    circumstances” exception to the rules. Thus, we have discretion to
    
    ignore a facially untimely notice of appeal when a litigant relies
    
    upon a district court’s representation that a Rule 59 motion is
    
    timely, even though a district court has no authority to extend
    
    time to file such a motion.6          Here, the district court expressly
    
    allowed    Cressionnie      additional      time   to    file     his   motion,
    
    representing that it is typical to give prisoner pro se litigants
    
    additional time, and Cressionnie relied upon the district court’s
    
    statement.      As in Fairley, this triggers the unique circumstances
    
    exception, and we have jurisdiction over Cressionnie’s appeal.7
    
                                          III
    
          We review de novo the district court’s dismissal for failure
    
    to state a claim under 28 U.S.C. § 1915(e)(2)(B)(ii).             Dismissal is
    
    proper if, taking all of plaintiff’s allegations as true, it
    
    
    
    
          6
           Fairley v. Jones, 
    824 F.2d 440
    , 442 (5th Cir. 1987); see Wolfsohn v.
    Hankin, 
    376 U.S. 203
     (1964) (mem.), rev’g 
    321 F.2d 393
     (D.C. Cir. 1963); Thompson
    v. INS, 
    375 U.S. 384
    , 386-87 (1964).
          7
           Fairley, 824 F.2d at 442-43.
    
                                           6
    appears that no relief could be granted on the plaintiff’s alleged
    
    facts.8
    
          For Cressionnie’s retaliation claims to go forward, he must
    
    allege: (1) a specific constitutional right; (2) the defendant’s
    
    intent to retaliate against the prisoner for his exercise of that
    
    right; (3) a retaliatory adverse act; and (4) causation.9                         “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.”10
    
    “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.”11
    
          With three of the defendants, the district court correctly
    
    dismissed Cressionnie’s claims. With defendant Epps, Cressionnie’s
    
    allegation of his personal belief that Epps retaliated against him
    
    is insufficient.12          With defendant Legg, Cressionnie alleged no
    
    evidence from which retaliation could be inferred.13 With defendant
    
    
    
          8
           Harris v. Hegmann, 
    198 F.3d 153
    , 156 (5th Cir. 1999).
          9
           McDonald v. Steward, 
    132 F.3d 225
    , 231 (5th Cir. 1998).
    
          10
               Woods v. Smith, 
    60 F.3d 1161
    , 1165 (5th Cir. 1995).
          11
               Id. at 1166 (internal quotation marks omitted).
          12
           Johnson v. Rodriguez, 
    110 F.3d 299
    , 310 (5th Cir. 1997) (“The relevant
    showing in [retaliation cases] must be more than the prisoner’s ‘personal belief
    that he is the victim of retaliation.’” (quoting Woods v. Edwards, 
    51 F.3d 577
    ,
    580 (5th Cir. 1995)).
          13
               Woods, 60 F.3d at 1166.
    
                                              7
    Overstreet, Cressionnie did not allege that Overstreet took an
    
    adverse       act     against   him.        Accordingly,   the    district    court’s
    
    dismissal        of    Cressionnie’s         claims   against    Epps,     Legg,   and
    
    Overstreet is affirmed.
    
          With       defendant        Hample,     Cressionnie’s      complaint    alleged
    
    sufficient facts to establish a retaliation claim. Cressionnie has
    
    a constitutional right to correspond with the general public and to
    
    contact        the     press.14         Cressionnie     alleges     that     Hample’s
    
    action––issuing the RVR––was in retaliation for Cressionnie sending
    
    letters to Presley’s lawyer and family that were critical of the
    
    prison and prison officials.                Further, in Hart v. Hairston, we held
    
    that the loss of commissary privileges and imposition of cell
    
    restrictions          constitutes      an   adverse   act.15     Here,   Cressionnie
    
    alleges that without the RVR for unauthorized phone use, he would
    
    have been allowed to return to the general prison population.
    
          Further, Cressionnie alleged a chronology of events from which
    
    a retaliatory motivation on the part of Hample and causation could
    
    plausibly be inferred.              Here, Cressionnie admitted to the phone
    
    violation, yet no RVR issued for over a month and only after the
    
    local newspaper published an article quoting an “anonymous inmate”
    
          14
           Freeman v. Texas Dep’t of Criminal Justice, 
    369 F.3d 854
    , 864 (5th Cir.
    2004) (holding that prisoners “retain, in a general sense, a right to criticize
    prison officials”); Woods v. Smith, 
    60 F.3d 1161
    , 1164 (5th Cir. 1996); Jackson
    v. Cain, 
    864 F.2d 1235
    , 1248 (5th Cir. 1989) (“A prison inmate is entitled to his
    First Amendment right to freedom of expression so long as it is not inconsistent
    with his status as a prisoner and does not adversely affect a legitimate state
    interest.”).
          15
               
    343 F.3d 762
    , 764 (5th Cir. 2003).
    
                                                  8
    at the prison.       These allegations are sufficient to state a valid
    
    claim for retaliation under § 1983.      That Cressionnie admitted to
    
    the rule violation is of no moment.      Our focus is on whether there
    
    was “retaliation for the exercise of a constitutional right,
    
    separate and apart from the apparent validity of the underlying
    
    disciplinary report.”16 Accordingly, the district court’s dismissal
    
    for failure to state a claim upon which relief can be granted is
    
    vacated and the case is remanded for further proceedings.
    
         AFFIRMED IN PART; VACATED AND REMANDED IN PART.
    
    
    
    
         16
              Woods, 60 F.3d at 1166.
    
                                         9