United States Court of Appeals

Fifth Circuit

FILED

September 9, 2003

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 02-50902

Summary Calendar

 

ROBERT G. HART,

Plaintiff-Appellant,

versus

KENNETH HAIRSTON; KARL THOMAS,

Major; JIMMY D. CRAIG, 

Defendants-Appellees.

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Appeal from the United States District Court

for the Western District of Texas

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Before WIENER, STEWART, and DENNIS, Circuit Judges. 

PER CURIAM:

Plaintiff-Appellant Robert G. Hart, Texas prisoner # 769108,

appeals from the district court’s order granting the defendants’

motion for summary judgment and dismissing his 42 U.S.C. § 1983

civil rights complaint for failure to state a claim on which relief

can be granted. We granted Hart leave to proceed in forma

pauperis (“IFP”) after the district court had certified that his

appeal was not taken in good faith.

Hart asserted that the defendants retaliated against him for

exercising his First Amendment right to file a grievance and to

complain to a prison administrator about the alleged misconduct of

defendant Hairston. He alleged that, only days after making such
2

complaints, Hairston filed a disciplinary report against Hart

charging him with “knowingly making false statements for the

purpose of harming another person.” Hart maintained that defendant

Thomas accepted the disciplinary charge, that he was convicted in

a disciplinary proceeding over which defendant Craig presided, and

that he was punished with 27 days of commissary and cell

restrictions. 

Section 1915(e)(2)(B)(ii), Title 28, permits a district court

to dismiss a prisoner’s IFP complaint “at any time if the court

determines that —— (B) the action or appeal —— . . . (ii) fails to

state a claim on which relief may be granted[.]” We review a 28

U.S.C. § 1915(e)(2)(B)(ii) dismissal de novo, applying the standard

used for FED. R. CIV. P. 12(b)(6). Black v. Warren, 134 F.3d 732,

734 (5th Cir. 1998); see Harper v. Showers, 174 F.3d 716, 718 n.3

(5th Cir. 1999). “To test whether the district court’s dismissal

under § 1915[(e)(2)(B)(ii)] was proper, this Court must assume that

all of the plaintiff’s factual allegations are true.” Bradley

v. Puckett, 157 F.3d 1022, 1025 (5th Cir. 1998). “The district

court’s dismissal may be upheld, ‘only if it appears that no relief

could be granted under any set of facts that could be proven

consistent with the allegations.’” Id. (citation omitted). 

To the extent that the district court’s order was based on the

evidentiary submissions of the parties, we review de novo that

court’s order granting a party’s summary-judgment motion.

Whittaker v. BellSouth Telecomm., Inc., 206 F.3d 532, 534 (5th Cir.

2000). Summary judgment is proper if the pleadings, depositions,
3

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. FED. R. CIV. P. 56(c).

The moving party bears the burden of showing the district court

that there is an absence of evidence to support the nonmoving

party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).

If the moving party meets the initial burden of showing that there

is no genuine issue, the burden shifts to the nonmovant to set

forth specific facts showing the existence of a genuine issue

for trial. Rule 56(e). 

“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.” Jones v. Greninger, 188 F.3d 322, 324-25 (5th Cir.

1999). “The law of this circuit is clearly established . . . that

a prison official may not retaliate against . . . an inmate . . .

for complaining to a supervisor about a guard’s misconduct.” Woods

v. Smith, 60 F.3d 1161, 1164 (5th Cir. 1995); Jackson v. Cain, 864

F.2d 1235, 1248 (5th Cir. 1989). Hart established a “chronology of

events” showing retaliatory motive on the part of defendant

Hairston, as the disciplinary charge filed by Hairston was

accompanied by Hart’s “letter of resolution” in which he accused

Hairston of misconduct and lying. See Woods, 60 F.3d at 1166. The

27 days of commissary and cell restrictions that directly resulted
1 The district court concluded that Hart had produced “no

competent summary judgment evidence” to show that he actually

suffered these sanctions. This was error. Hart submitted a

declaration, sworn to “under penalty of perjury” in which he

asserted that he in fact served the 27 days of commissary and cell

restrictions. Under 28 U.S.C. § 1746, this is competent sworn

testimony for summary-judgment purposes. See Nissho-Iwai American

Corp. v. Kline, 845 F.2d 1300, 1306 (5th Cir. 1988). 

2 As neither Hart nor the appellees have addressed whether

the subsequent overturning of the disciplinary conviction in this

case rendered the disciplinary report ineffectual as summaryjudgment evidence, we do not address this legal issue at this time.

4

constituted an “adverse act,”1 and causation was shown by the

direct link between Hart’s complaints and the punishment he

received. See McDonald v. Steward, 132 F.3d 225, 231 (5th Cir.

1998). 

The defendants argue that the “adverse act” suffered by

Hart was de minimis. Although we have not specifically addressed

the quantum of injury necessary to constitute an “adverse act” for

purposes of a retaliation claim, the penalties imposed on Hart do

not qualify as “de minimis” under various standards cited by other

circuits. See, e.g., Thaddeus-X v. Blatter, 175 F.3d 378, 396 (6th

Cir. 1999) (“action comparable to transfer to administrative

segregation would certainly be adverse”). 

The defendants also argue that Hart failed to produce

“competent summary judgment evidence” showing that his accusations

against Hairston were not in fact false, which allegedly negated

any “but for” causation with respect to Hairston’s filing of the

disciplinary report. It is true that a disciplinary report, like

that filed against Hairston, may be “probative and potent summary

judgment evidence” to prove the allegations contained in it.2
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See Woods, 60 F.3d at 1166. Hart, however, attached to his

original complaint a signed declaration under penalty of perjury

that “the foregoing is true and correct.” On summary judgment,

factual allegations set forth in a verified complaint may be

treated the same as when they are contained in an affidavit. See

Huckabay v. Moore, 142 F.3d 233, 240 n.6 (5th Cir. 1998); King v.

Dogan, 31 F.3d 344, 346 (5th Cir. 1994); 28 U.S.C. § 1746. In his

verified complaint, Hart explicitly alleged that, on February 14,

2001, Hairston told him to lie to inspectors about the sanitization

of pots and pans at the prison. It was this same allegation, as

set forth in a February 15, 2001, “letter of resolution” to the

prison’s Food Service Director, that resulted in the filing of a

disciplinary report against Hart. The verified allegation in

Hart’s complaint was competent summary-judgment evidence to counter

the disciplinary report, and it created a genuine issue of material

fact with respect to the issue of causation. 

As Hart stated a cognizable retaliation claim against

defendant Hairston, and genuine issues of material fact remain as

to the various elements of this court’s retaliation standard, the

district court erred in granting the defendants’ summary-judgment

motion with respect to defendant Hairston. Furthermore, Hairston

was not entitled to qualified immunity because, as noted above, the

right to be free from retaliation of the sort alleged by Hart was

“clearly established” by the 1980s, see Woods, 60 F.3d at 1164 &

n.12, and defendant Hairston’s conduct, as alleged by Hart, was not

objectively reasonable. See Petta v. Rivera, 143 F.3d 895, 899
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(5th Cir. 1998); Harlow v. Fitzgerald, 457 U.S. 800, 819 (1982).

Accordingly, with respect to Hart’s retaliation claim against

Hairston, we vacate and remand for further proceedings not

inconsistent with this opinion. 

Hart did not sufficiently establish the elements of a

retaliation claim with respect to defendants Thomas and Craig.

Their mere involvement in the disciplinary proceedings against him,

without more, does not establish either retaliatory motive or

causation. See Jones, 188 F.3d at 324-25. We affirm the granting

of summary judgment with respect to defendants Thomas and Craig. 

To the extent that the district court’s order denied Hart’s

own motion for partial summary judgment, we likewise affirm, in

that genuine issues of material fact remain.

VACATED AND REMANDED IN PART; AFFIRMED IN PART.