Crawford-El v. Britton

KAREN LECRAFT HENDERSON, Circuit Judge, concurring:

It is high time that we scuttle the awkward direct/circumstantial evidence distinction and I fully endorse the clear and convincing standard the plurality adopts in its stead. I am at a loss to understand, however, why my colleagues chose this case to do so. Despite repeated opportunities to replead below, both pro se and through appointed counsel, the plaintiff has failed, as he has so many times before, [1] to allege facts demonstrating the deprivation of any constitutional right (clearly established or not). [2] In short, his constitutional claims are frivolous and the district court would have done well to dismiss the complaint sua sponte under the in forma pauperis statute, either before or after our first remand. See 28 U.S.C. 1915(d) (authorizing district court to dismiss in forma pauperis suit "if satisfied that the action is frivolous or malicious"). Nevertheless, my colleagues choose yet again to ignore the hopeless infirmity of the plaintiff's claims and insist on maintaining life support. On remand, the district court will no doubt at long last lay the plaintiff 's meritless claims to rest. I would have pulled the plug long ago.

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"). ]

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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. ]

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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. ]

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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

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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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