United States Court of Appeals

for the Fifth Circuit

No. 19-30524

Allen Ancar, 

Plaintiff—Appellant,

versus

Randall Robertson, Colonel, Louisiana State Penitentiary; William 

Folk, Classification Officer, Louisiana State Penitentiary; Trish 

Foster, Former Legal Programs Director, Louisiana State Penitentiary, 

Defendants—Appellees.

Appeal from the United States District Court

for the Middle District of Louisiana

No. 3:18-CV-3

Before Jolly, Elrod, and Haynes, Circuit Judges.

Per Curiam:*

Allen Ancar is a Louisiana state prisoner. He was assigned to work in 

the field at a prison farm. The working conditions were poor in his view, so 

he filed a grievance and sought a job transfer. About a month later, prison 

* Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited 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 Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

June 2, 2022

Lyle W. Cayce

Clerk

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officials filed a disciplinary report against him for failing to show up for work. 

Because of that disciplinary report, his transfer request was denied. The 

grievance was eventually denied as well. Ancar brings several claims against 

prison officials. He alleges that they unconstitutionally retaliated against his 

filing a grievance by delaying resolution of his work transfer request, and that 

they violated his rights by denying his grievance. We conclude that two of 

the defendants are entitled to qualified immunity from the retaliation claim. 

But we also conclude that Ancar’s claim against the other defendant should 

not have been dismissed for failure to properly serve. Thus, we AFFIRM 

IN PART, VACATE IN PART, and REMAND for further proceedings 

consistent with this opinion.

I.

Ancar, a Louisiana inmate, began doing field work on the prison farm 

in 2016. Such work, Ancar asserts, is known to be physically taxing and is 

often used to punish prisoners. On April 5, 2017, Ancar applied for a change 

in work assignment. Under prison policy, when an inmate requests a change 

in work assignment, the request is reviewed by a reclassification board 

composed “of a Major or above, a Corrections ARDC SpecialistClassification, and a member of the Mental Health Team or 

Vocational/Academic representative.” That reclassification board is 

convened once a week, and an inmate’s request for a job change is generally 

considered either the week he turns it in or the week after. The 

reclassification board’s decision is “subject to review, approval, or 

modification by the [unit] Warden or his designee.” Under prison policy, 

Ancar was eligible for a work transfer at the time of his request because he 

had no disciplinary report against him for at least the prior 90 days.

On April 10, 2017, Ancar filed a grievance with the prison’s Legal 

Programs Department, alleging inhumane working conditions and injuries 

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received at the hands of prison officials. Initially, Ancar named Assistant 

Warden Ray Vittorio in his grievance. Vittorio designated defendant Colonel 

Randall Robertson to manage administrative matters including requests for 

changes to work assignments.

On May 3, 2017, Ancar and other inmates were required to work 

outside in inclement weather. Displeased with that treatment, Ancar refused 

to show up for work the following two days. As a result, prison officials 

charged Ancar with an aggravated work offense and defiance on May 5, 2017. 

Defendant Trish Foster, who at that time was the director of Legal Programs 

for the Louisiana State Penitentiary, purportedly denied the previously filed 

grievance on May 10 because the request’s “volume [was] too great.” And 

on May 31, Ancar’s work-change request was denied because he had become 

ineligible for a transfer in light of the disciplinary report. 

Ancar filed another grievance with the Legal Programs Department 

on June 26, 2017, alleging that by denying his work-change request, 

Robertson and defendant William Folk, a classification officer, retaliated 

against him for filing the previous grievance. Foster again denied Ancar’s 

grievance alleging retaliation because its “volume [was] too great.” 

On August 21, 2017, Ancar submitted a second request for a change in 

work assignment for “[a]ny job out of the field that’s available.” At that 

time, Ancar had gone about 110 days without receiving a disciplinary report

(and thus was eligible to request a reassignment), but the request was denied 

without a stated reason. Ancar alleges that around the same time at least 

three other inmates working on the farm line requested changes in work 

assignment and were approved, even though they did not qualify because of

disciplinary charges filed against them. 

In January 2018, Ancar filed the lawsuit central to this case. He made 

three claims. First, he alleged that defendants Robertson and Folk violated 

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his First Amendment rights. Specifically, he asserted that they retaliated 

against his filing a grievance by failing to timely process his request for a 

change in work assignment before he committed the disciplinary violation

that rendered him ineligible. Second, Ancar alleged that defendant Trish 

Foster violated Ancar’s right to equal protection by rejecting Ancar’s 

grievances as too great in volume. Third, in a supplemental pleading that was 

entered into the record by the district court, he alleged that defendant 

Robertson continued to retaliate against him and violated his right to equal 

protection by causing the denial of his August 21, 2017 request for a change 

in work assignment.

Defendants Robertson and Folk moved for summary judgment. The 

magistrate judge recommended granting the motion. In his view the 

defendants were entitled to qualified immunity because Ancar “failed to 

provide competent summary judgment evidence showing that the defendants 

retaliated against him for the exercise of his First Amendment rights” by 

denying the work change request.1

 As for the claim that Ancar brought 

against defendant Foster, the magistrate judge concluded that the claim 

should be dismissed without prejudice because Foster was not properly 

served. The magistrate judge did not address Ancar’s retaliation claim 

challenging the denial of his later August 2017 work-change request.

The district court adopted the magistrate judge’s findings and 

recommendations and entered final judgment in favor of the defendants. 

Ancar timely appealed to this court.

1 And as for Ancar’s claim that Robertson and Folk retaliated against him by 

delaying consideration of his work-change request, the magistrate judge found that Ancar’s 

allegations were merely conclusory and addressed them no further.

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II.

Ancar argues that the district court erred by (1) granting summary 

judgment to defendants Robertson and Folk, (2) failing to consider his 

retaliation claim based on the denial of his second work-change request from 

August 2017, and (3) dismissing his claim against defendant Foster for failure 

to properly serve.

A.

Ancar challenges the district court’s grant of summary judgment to 

defendants Robertson and Folk on Ancar’s retaliation claim. This court 

reviews de novo a district court’s grant of summary judgment. Hyatt v. 

Thomas, 843 F.3d 172, 176–77 (5th Cir. 2016). Summary judgment is 

appropriate “if the movant shows that there is no genuine dispute as to any 

material fact and the movant is entitled to judgment as a matter of law.” Fed. 

R. Civ. P. 56(a); see also Guzman v. Allstate Assurance Co., 18 F.4th 157, 160 

(5th Cir. 2021). “A dispute is genuine if the summary judgment ‘evidence is 

such that a reasonable jury could return a verdict for the [non-movant].’”

Hyatt, 843 F.3d at 177 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 

248 (1986)). We view the evidence in the light most favorable to the 

nonmoving party. Carnaby v. City of Houston, 636 F.3d 183, 187 (5th Cir. 

2011). 

Ancar claims that Robertson and Folk impermissibly retaliated against 

him for his exercising his right to file a grievance. “To prevail on a claim for 

retaliation, a prisoner must establish (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.” Morris v. Powell, 

449 F.3d 682, 684 (5th Cir. 2006) (quoting McDonald v. Steward, 132 F.3d 

225, 231 (5th Cir. 1998)).

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An inmate may not defeat a motion for summary judgment with only 

conclusory allegations of retaliation. Woods v. Smith, 60 F.3d 1161, 1166 (5th

Cir. 1995). Thus, to support a retaliation claim, “[t]he inmate must produce 

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

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

(quoting Cain v. Lane, 857 F.2d 1139, 1143 n.6 (7th Cir. 1988)). Under the 

third element of such a claim, the inmate must show that the complained of 

retaliatory act was more than de minimis such that “it is capable of deterring 

a person of ordinary firmness from further exercising his constitutional 

rights.” Morris, 449 F.3d at 686. And under the fourth element, “an inmate 

must allege the violation of a specific constitutional right and be prepared to 

establish that but for the retaliatory motive the complained of incident . . . 

would not have occurred.” Woods, 60 F.3d at 1166.

In this case, the district court granted summary judgment to 

defendants Robertson and Folk on qualified immunity grounds. When a state 

official raises a qualified immunity defense, the plaintiff must show that the 

official violated a constitutional right that was clearly established at the time 

of the incident. Siegert v. Gilley, 500 U.S. 226, 231–32 (1991). To this end, 

we ask whether it would have been clear to a reasonable state official that the 

official’s conduct was unlawful under the circumstances. Shumpert v. City of 

Tupelo, 905 F.3d 310, 320, 320 n.31 (5th Cir. 2018). Our precedent makes 

clear that “[a] prison official may not retaliate against or harass an inmate for 

complaining through proper channels” about prison conditions. See Morris, 

449 F.3d at 684; Pfeil v. Freudenthal, 281 F. App’x 406, 409 (5th Cir. 2008)

(citing Freeman v. Tex. Dep’t of Crim. Just., 369 F.3d 854, 864 (5th Cir. 2004),

and Woods, 60 F.3d at 1164). However, we have not addressed whether the

delayed consideration of a work-reassignment request is an adverse act 

sufficient to support a retaliation claim. Thus, we conclude that it would not 

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have been clear to a reasonable state official that failing to consider Ancar’s 

work-reassignment request more promptly would be unlawful.

We therefore affirm the district court’s grant of summary judgment to

Robertson and Folk on qualified immunity grounds.

B.

Ancar asserts that the district court and magistrate judge erred by 

failing to consider his challenge to the denial of his August 2017 workreassignment request. We hold that, regardless of whether the district court 

and magistrate judge erred by failing to address the claim, the claim would 

fail. 2 Ancar asserts that defendant Robertson caused the denial of his August 

2017 work-reassignment request as continued retaliation for the grievance 

Ancar filed months before. But Robertson was not a member of the review 

board that denied Ancar’s request, and Ancar has failed to provide direct 

evidence of “a chronology of events from which retaliation may plausibly be 

inferred.” See Woods, 60 F.3d at 1166. In other words, although it is possible 

that Ancar’s August 2017 reassignment request was denied because of a 

retaliatory motive, Ancar has failed to create an issue of fact regarding

defendant Robertson’s involvement.

C.

Finally, we address Ancar’s argument that the district court erred by 

dismissing his claim against defendant Foster for lack of proper service. 

Under Rule 4(c)(3) of the Federal Rules of Civil Procedure, a court must 

order the U.S. Marshals to effectuate service on behalf of a pro se plaintiff

2 We also note that, regardless of whether the district court and magistrate judge

addressed the claim, the district court implicitly decided it when that court issued a 

complete and final judgment for the defendants. See, e.g., NCNB Tex. Nat’l Bank v. 

Johnson, 11 F.3d 1260, 1264 (5th Cir. 1994).

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proceeding in forma pauperis. “[A] plaintiff proceeding in forma pauperis is 

entitled to rely upon service by the U.S. Marshals and should not be penalized 

for failure of the Marshal’s Service to properly effect service of process, 

where such failure is through no fault of the litigant.” Rochon v. Dawson, 828 

F.2d 1107, 1110 (5th Cir. 1987). Normally, a defendant must be properly 

served within 90 days of the filing of the complaint, and if that condition is 

not satisfied, the court must dismiss the action against the defendant without 

prejudice or order that service be made within a specified time. Fed. R. Civ. 

P. 4(m). “But if the plaintiff shows good cause for the failure to serve, the 

court must extend the time for service for an appropriate period.” Id.

In this case, the U.S. Marshals were ordered to serve the defendants 

on Ancar’s behalf. They were successful with serving Robertson and Folk, 

but not Foster. Ancar had listed Foster as a Louisiana Department of 

Corrections employee, but service with that institution was unsuccessful 

because Foster no longer worked there. After learning that service was 

unsuccessful, Ancar attempted to serve Foster first through the Louisiana 

Attorney General’s office, and, when that failed, through the District 

Attorney’s office in Avoyelles Parish, where Ancar believed Foster to reside. 

Ancar thus made diligent efforts to serve Foster. He was unsuccessful 

simply because Foster’s employment status with the Department of 

Corrections changed, and he did not know how else to find her. That 

impediment to service was good cause for Ancar’s failure. Thus, under Rule 

4(m), the district court should have “extend[ed] the time for service for an 

appropriate period.” 

The magistrate judge’s report and recommendations, adopted by the 

district court, also concluded that Ancar’s claim against Foster would fail on 

the merits. We conclude, however, that Ancar may have a viable claim 

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against Foster and that the report’s articulation of alternative grounds for 

dismissal based on the merits was error.

Ancar raises a class-of-one equal protection claim against Foster. He 

asserts that Foster violated his right to equal protection by twice rejecting his 

grievances for being too great in volume, but around the same time did not 

likewise reject grievances filed by other inmates that were of similar or even 

greater volume. The magistrate judge stated that inmates have no 

constitutional due-process right to proper resolution of their grievances or a 

right to have prison officials follow prison policy. 

However, by the terms of Ancar’s complaint, his claim is an equalprotection claim, not a due-process claim. Thus, the question is not whether 

Ancar had a constitutional right not to have his grievances rejected based on 

their volume, but whether the government actor intentionally treated him 

differently compared to similarly situated persons without a rational basis for 

doing so. Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (describing 

class-of-one equal-protection claims). Because neither defendant Foster nor 

the district court has had an opportunity to address the issue, we do not give 

an answer here as to whether Ancar’s class-of-one claim is likely to succeed. 

But we note that the magistrate judge and the district court erred to the extent 

that they relied on a due-process argument as a ground for dismissing this 

claim.

We therefore vacate the portion of the district court’s decision 

dismissing Ancar’s claim against Foster and remand for further proceedings 

consistent with this opinion.

* * *

We AFFIRM the district court’s grant of summary judgment to 

defendants Robertson and Folk on qualified immunity grounds. But because 

the district court failed to give Ancar additional time to serve defendant 

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Foster, we VACATE the portion of the order dismissing Ancar’s claim 

against her and REMAND for further proceedings consistent with this 

opinion.

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