IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-20306

LAWRENCE HIGGINS, 

 Plaintiff–Appellant, 

v. 

RICHARD MORRIS, Warden; ERNEST NAVARRETE, Major; DELETA 

JONES, Captain, 

 Defendants–Appellees. 

Appeal from the United States District Court 

for the Southern District of Texas 

USDC No. 4:13-CV-2419

Before CLEMENT, PRADO, and OWEN, Circuit Judges. 

PER CURIAM:*

Lawrence Higgins, an inmate of the Texas Department of Criminal 

Justice (TDCJ), asserts that certain TDCJ officers retaliated against him for 

using the prison grievance system by assigning him a less desirable custody 

status than he would otherwise have been assigned. The district court granted 

the officers’ motion for summary judgment based on their assertion of qualified 

 

* 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.

United States Court of Appeals

Fif h Circuit

FILED

December 12, 2016

Lyle W. Cayce

Clerk

 Case: 15-20306 Document: 00513793615 Page: 1 Date Filed: 12/12/2016
15-20306

2 

immunity, finding that Higgins failed to show a causal connection between 

retaliatory motive and the adverse action taken against him. We reverse the 

grant of summary judgment and remand for further proceedings. 

I 

Higgins provided a urine sample that tested positive for marijuana. He 

was found guilty of the disciplinary offense of using or possessing unauthorized 

drugs, and consequently, a three-person panel assigned him to a G-4 custody 

level. Higgins then filed a successful grievance, and the disciplinary action 

was overturned because the supervisor, Ernest Navarrete, had failed to sign a 

required form for the drug test. The TDCJ exercised its right to rehear the 

case and again found Higgins guilty of the same disciplinary offense. A 

different panel then reassessed Higgins’s punishment. This second panel

included Navarrete, the officer who had originally failed to sign the underlying 

drug test, Betty Germany, who had served on the prior panel, and Deleta 

Jones. Reading the record in the light most favorable to Higgins, he appears 

to allege that he was present at the second hearing when the panel discussed 

what the consequences of the drug possession or use should be. He alleges that 

initially two of the three members of the panel suggested a change to a G-4 

custody level, the same classification he had received before filing the 

grievance. However, Higgins alleges Navarrete then stated that he 

remembered Higgins as the prisoner who had filed the grievance that 

overturned the prior disciplinary action for Navarrete’s failure to sign 

paperwork. According to Higgins, Navarrete stated that he would have “put 

[Higgins] in closed custody [G-5] for all this trouble.” After Navarrete’s 

remark, Jones purportedly changed her vote to the harsher G-5 classification 

suggested by Navarrete. When Higgins protested the demotion, Navarrete 

 Case: 15-20306 Document: 00513793615 Page: 2 Date Filed: 12/12/2016
15-20306

3 

allegedly replied, “[You’re] the one who filed a grievance,” and Jones told 

Higgins to “file another grievance.” 

Higgins brought this suit under 42 U.S.C. § 1983, arguing that the 

officers retaliated against him for filing a grievance by assigning him to a more 

restrictive custody status than he would otherwise have been assigned. The 

officers moved for summary judgment, asserting that qualified immunity 

applied because Higgins had failed to assert a violation of a constitutional right

and, in any event, their actions were reasonable. The district court granted 

summary judgment, concluding that Higgins failed to show that but for the 

retaliatory motive, the custody demotion would not have occurred, and thus 

failed to support his claim for retaliation. 

II

This court reviews a district court’s grant of summary judgment de 

novo.1 “Summary judgment is proper if the pleadings, depositions, answers to 

interrogatories, and admissions on file, together with any affidavits filed in 

support of the motion, show that there is no genuine issue as to any material 

fact, and that the moving party is entitled to judgment as a matter of law.”2 

This court has considered a prisoner’s verified or sworn pleadings to be 

competent summary judgment evidence.3

 

1 DePree v. Saunders, 588 F.3d 282, 286 (5th Cir. 2009); see also Hart v. Hairston, 343 

F.3d 762, 764 (5th Cir. 2003) (per curiam); Woods v. Smith, 60 F.3d 1161, 1164 (5th Cir. 

1995).

2 Hart, 343 F.3d at 764 (citing FED. R. CIV. P. 56(c)). 

3 See Falcon v. Holly, 480 F. App’x 325, 326 (5th Cir. 2012) (per curiam) (“[A] verified 

complaint and other verified pleadings serve as competent summary judgment evidence.”); 

Hart, 343 F.3d at 765 (“On summary judgment, factual allegations set forth in a verified 

complaint may be treated the same as when they are contained in an affidavit.”); King v. 

Dogan, 31 F.3d 344, 346 (5th Cir. 1994) (per curiam) (noting that a complaint verified as true 

and correct under penalty of perjury could constitute competent summary judgment 

evidence). Under 28 U.S.C. § 1746(2), a statement “in writing . . . which is subscribed by [the 

 Case: 15-20306 Document: 00513793615 Page: 3 Date Filed: 12/12/2016
15-20306

4 

“[Q]ualified immunity shields officials from civil liability so long as their 

conduct ‘does not violate clearly established statutory or constitutional rights 

of which a reasonable person would have known.’”4 “A clearly established right 

is one that is ‘sufficiently clear that every reasonable official would have 

understood that what he is doing violates that right.’”5 This “demanding 

standard”6 protects “all but the plainly incompetent or those who knowingly 

violate the law.”7 Because it has long been “clearly established . . . that a 

prison official may not retaliate against or harass an inmate . . . for 

complaining to a supervisor about a guard’s misconduct,”8 we focus our inquiry 

on whether Higgins has presented a genuine dispute of material fact as to 

whether the TDCJ officers violated this right.

“To state a valid claim for retaliation under section 1983, a prisoner must 

allege (1) a specific constitutional right, (2) the defendant’s intent to retaliate 

against the prisoner for his or her exercise of that right, (3) a retaliatory 

adverse act, and (4) causation.”9 In order to show retaliation, the inmate “must 

produce direct evidence of motivation or, the more probable scenario, ‘allege a 

 

authoring individual], as true under penalty of perjury, and dated, in substantially the 

following form: . . . ‘I declare (or certify, verify, or state) under penalty of perjury that the 

foregoing is true and correct. Executed on (date). (Signature)’” will satisfy any requirement 

that a matter be supported by “sworn declaration, verification, certificate, statement, oath, 

or affidavit, in writing of the person making the same.” 

4 Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (per curiam) (quoting Pearson v. 

Callahan, 555 U.S. 223, 231 (2009)).

5 Id. (quoting Reichle v. Howards, 132 S. Ct. 2088, 2093 (2012)).

6 Vincent v. City of Sulphur, 805 F.3d 543, 547 (5th Cir. 2015).

7 Malley v. Briggs, 475 U.S. 335, 341 (1986). 8 Woods v. Smith, 60 F.3d 1161, 1164 (5th Cir. 1995); accord Morris v. Powell, 449 

F.3d 682, 684 (5th Cir. 2006) (“A prison official may not retaliate against or harass an inmate 

for complaining through proper channels about a guard’s misconduct.”). 9 Bibbs v. Early, 541 F.3d 267, 270 (5th Cir. 2008) (quoting Jones v. Greninger, 188 

F.3d 322, 324-25 (5th Cir. 1999) (per curiam)); Hart, 343 F.3d at 764 (quoting Greninger, 188 

F.3d at 324-25). 

 Case: 15-20306 Document: 00513793615 Page: 4 Date Filed: 12/12/2016
15-20306

5 

chronology of events from which retaliation may plausibly be inferred.’”10 To 

show causation, the inmate must show that “but for the retaliatory motive[,] 

the complained of incident . . . would not have occurred.”11 

III

The district court concluded that Higgins failed to show that, absent 

Navarrete’s retaliation, Higgins would not have been demoted. The district 

court reasoned that because at least one other committee member had to agree

with Navarrete, Higgins failed to raise material facts as to causation.12 

Higgins alleges that Jones and Germany both initially voted to assign 

him the same custody status (G-4) he had received previously. Only after 

Navarrete commented on the former grievance did Jones change her vote. 

When Higgins protested, Jones told him to “file another grievance.” 

In reviewing the summary judgment record, we must assume that 

Higgins’s version of the facts is accurate, since he was the non-moving party 

and judgment was rendered against him.13 Accordingly, there is some evidence 

of causation. Navarrete’s statement suggests his own vote was motivated by 

retaliatory intent. Two votes were necessary for classification, and it is clear 

that Germany voted for a G-4 rather than a G-5 custody classification. Higgins 

has presented evidence that Jones may also have retaliated, or alternatively, 

that Navarrete’s retaliatory motive caused Jones to change her vote. A 

 

10 Woods, 60 F.3d at 1166 (quoting Cain v. Lane, 857 F.2d 1139, 1143 n.6 (7th Cir. 

1988)); see also Bibbs, 541 F.3d at 272-73 (setting forth the same standard). 11 Woods, 60 F.3d at 1166; see also McDonald v. Steward, 132 F.3d 225, 231 (5th Cir. 

1998) (setting forth the same standard). 

12 The other elements of the retaliation claim are not present before us now. 13 See Tolan v. Cotton, 134 S. Ct. 1861, 1865 (2014) (per curiam) (explaining that “[i]n 

resolving questions of qualified immunity at summary judgment, courts . . . ask[] whether 

the facts, ‘taken in the light most favorable to the party asserting the injury, show the officer’s 

conduct violated a federal right.’” (alterations omitted) (quoting Saucier v. Katz, 533 U.S. 194, 

201 (2001))). 

 Case: 15-20306 Document: 00513793615 Page: 5 Date Filed: 12/12/2016
15-20306

6 

reasonable person could infer that because Jones voted for G-4 until Navarrete 

raised Higgins’s grievance, Jones’s vote for a G-5 classification was motivated 

by retaliatory animus. Had either Navarrete or Jones voted differently, the 

more restrictive custody classification would not have been imposed. Higgins 

has raised an issue of material fact as to causation. 

IV

The district court did not determine whether the right Higgins asserted 

was clearly established, presumably because it concluded that Higgins had 

failed to support his claim for retaliation adequately. However, as noted above,

we have held that it is “clearly established . . . that a prison official may not 

retaliate against . . . an inmate” for using the grievance system.14 

Nevertheless, the officers argue that their actions are reasonable because 

Higgins’s classification was based on “the nature of the offense, and his need 

for supervision.” However, “[a]n 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.”15 There is a genuine 

dispute as to a material fact, namely whether the actions were retaliatory or 

based only on legitimate factors. 

* * * 

We REVERSE the grant of summary judgment and REMAND for 

further proceedings. 

 

14 Woods, 60 F.3d at 1164.

15 Id. at 1165-66 (refusing to require favorable termination in a retaliatory 

interference claim); see also Jackson v. Cain, 864 F.2d 1235, 1248-49 (5th Cir. 1989) (holding 

that summary judgment was improper in a case in which a prisoner alleged a facially valid 

claim of retaliation but the government asserted poor performance was the actual motivator, 

because, even if grievance was ultimately determined to have been filed in bad faith, there 

was a dispute of material fact). 

 Case: 15-20306 Document: 00513793615 Page: 6 Date Filed: 12/12/2016