Crawford-El v. Britton

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.

Crawford-El sets the stage with allegations that Britton was hostile to him because of his actions on behalf of fellow prisoners even before his contacts with the press. While he was Clerk for the Occoquan Facility Housing and Adjustment Board at Lorton (from about October 1985 to April 1986), he had frequent contact with Britton since she often served on that Board and Crawford-El often went to the nearby block containing Britton's office to photocopy. He claims that Britton, while despising all prisoners, was particularly hostile to him because he had been in charge of the law library when housed at the central facility at Lorton and had helped many

prisoners prepare administrative grievances. According to Crawford-El, Britton deemed him "too big for his britches."

In April 1986 Crawford-El apparently invited reporters from the Washington Post to visit the prison, correctly noting on the visitor application form submitted to Britton that the proposed visitors' address was 1150 15th Street, NW, Washington, DC 20071, but discreetly omitting that this was the Post's address. Britton approved the application. A reporter came, and on April 20, 1986 the Post published a front-page article under the headline "Jail Crisis Spills Into Occoquan Unit," subheaded "Crowding, Anger Grow as D.C. Inmates are Shifted to Va. Facility." It quoted Crawford-El's account of an alleged irregularity - that on his arrival at Occoquan a correctional officer had obtained trousers for him by searching in other prisoners' lockers for an extra pair. The next day, says Crawford-El, Britton called him into her office and told him he had "tricked" her and that "so long as [Crawford-El] was incarcerated she was going to do everything she had to to make it as hard for him as possible."

Between April 1986 and Crawford-El's next successful use of the press, he brought a variety of lawsuits against the District. In one, for property allegedly lost through prison officials' negligence, he recovered about $500; in three others he complained on behalf of himself and a class about the lack of food compatible with prisoners' Islamic beliefs, alleged interference with his religious beliefs, and sued, curiously, "for legal malpractice." In December 1988, while the suits were pending, he and a group of other prisoners were transferred to the Spokane County Jail. While assembled for the trip in shackles, the prisoners were videotaped. Plaintiff says that he and others protested the videotaping as a violation of their privacy rights, to which Britton responded, "You're a prisoner, you don't have any rights."

Shortly after arrival at Spokane, Crawford-El again spoke with a reporter from the Post. On December 18, 1988, another front-page article appeared, "Sudden Move Severs Inmates' Ties to D.C.; Isolation of Spokane County Jail Puts Prisoners "In a Firecracker Mood.' " It credited Crawford-

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.

The alleged retaliatory act - the misdelivery of boxes - occurred in the course of Crawford-El's transfer back from Spokane to Lorton and thence on to a federal prison in Marianna, Florida, a transfer over which Britton had charge. At Spokane, Crawford-El was instructed to give his property to officials there for forwarding to him. Crawford-El alleges Britton was aware of the boxes' importance to him, saying that when he and two other prisoners met Britton on August 18, 1989 at the Western Missouri Correctional Center en route back to Lorton, they told her that their boxes contained legal papers needed for ongoing cases. She allegedly said that she understood Crawford-El's need for the personal property and legal materials and that the boxes would be sent to her office. [10] (In her affidavit Britton contests the claim that she was ever told of the papers: "I do not recall plaintiff telling me that there were legal documents in his personal property, nor did I have knowledge of the contents of the three sealed boxes." She said she had the boxes sent to her office to keep them from being lost.)

In late August, after arriving back at Lorton, Crawford-El allegedly wrote to Britton requesting that his property be

[10 On the trip back to Lorton, supervised by Britton, the property Crawford-El was carrying with him (and that of other prisoners as well) was put into storage on the bus and apparently lost. Crawford-El won an uncontested small claims court suit against Britton for $72.50 based on this loss. ]

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."

In the course of Crawford-El's attempts to get his property back, his lawyer received a copy of a letter from the Corporation Counsel's office, stating:

As has been our past practice, inmates transferring from DCDOC [the D.C. Department of Corrections] to BOP [the federal Bureau of Prisons] custody are permitted only a small amount of personal property which should be limited to personal care items and legal documents.

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.

The allegations supplying the strongest evidence of Britton's alleged malign intent are her threat to Crawford-El after the 1986 Post article to make things "as hard as possible for him" and her remark to Carter about throwing the boxes in the trash. But those comments - for both of which Crawford-El is the only source mentioned - are suspect as self-serving assertions. The complaint undermines the "trash" comment by affirmatively asserting that Carter said Britton told him she was giving him the property out of concern about its getting lost, an account that Britton's affidavit supports. As for the allegation that Britton told a Spokane County Jail official that Crawford-El was "a legal troublemaker," the complaint itself defines that term in such a way as to make it impossible to deny that the description is apt. The letter by Corporation Counsel on its face suggests some confusion about the federal Bureau of Prisons policy concerning transfer of D.C. inmate's personal property, reducing the likelihood that Britton's handing the property to his brother-in-law was a deliberate scheme to keep it away from Crawford-El. Indeed, in the absence of some reason to believe Britton thought Carter had it in for Crawford-El or was hopelessly incompetent (neither of which is claimed by Crawford-El), or thought that federal prison officials would much more readily allow Crawford-El to receive the property if sent by the D.C. Department of Corrections than if sent from outside the prison system, transfer of the boxes to the brother-in-law makes an awkward fit with any serious purpose to keep them from Crawford-El. In addition, Crawford-El's own complaint states that Britton had tele-

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.

Accordingly we vacate the dismissal of Crawford-El's First Amendment retaliation claim against Britton, and the pendent conversion claim (see supra note 1), and, once the panel has resolved the issues between Crawford-El and the District (see id.), remand the case to the district court for further proceedings.

So ordered.

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