Cressionnie v. Hample ( 2006 )

  •                                                                 United States Court of Appeals
                                                                             Fifth Circuit
                                                                          F I L E D
                                                                            June 6, 2006
                               FOR THE FIFTH CIRCUIT
                                                                      Charles R. Fulbruge III
                                    No. 04-61022
                                  Summary Calendar
                              CLINTON L. CRESSIONNIE,
     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,
                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.
          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    should not be published and is not precedent except under the limited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.
         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.
    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
    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
    failure        to   state   a   claim    upon    which   relief    can   be   granted.
    Cressionnie appealed.
           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
             Fed. R. App. P. 4(a)(4)(A).
             Fed. R. Civ. P. 59(e).
             Fed. R. Civ. P. 6(b).
             Lavespere v. Niagara Mach. & Tool Works, Inc., 
    910 F.2d 167
    , 173 (5th Cir.
    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
          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
           Fairley v. Jones, 
    824 F.2d 440
    , 442 (5th Cir. 1987); see Wolfsohn v.
    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).
           Fairley, 824 F.2d at 442-43.
    appears that no relief could be granted on the plaintiff’s alleged
          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
           Harris v. Hegmann, 
    198 F.3d 153
    , 156 (5th Cir. 1999).
           McDonald v. Steward, 
    132 F.3d 225
    , 231 (5th Cir. 1998).
               Woods v. Smith, 
    60 F.3d 1161
    , 1165 (5th Cir. 1995).
               Id. at 1166 (internal quotation marks omitted).
           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)).
               Woods, 60 F.3d at 1166.
    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”
           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
    343 F.3d 762
    , 764 (5th Cir. 2003).
    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.
              Woods, 60 F.3d at 1166.