# FILED December 4, 2001 Cecil Crowson, Jr . Appellate Court Clerk IN THE COURT OF APPEALS OF TENNESSEE WESTERN SECTION AT JACKSON

______________________________________________ GARY BERNARD SANDERS, #76973, Plaintiff -Appella nt, Lauderdale Circuit No. 4713 Vs. C.A. No. 02A01-9610-CV-00261 JIMMIE L. JONES, Defendant-Appellee.

__________________________________________________ __________________________ FROM THE LA

UDERDAL

E COUNTY

CIRCUIT CO URT THE HONORABLE JOSEPH H. WALKER, JUDGE

Gary Ber nard San ders, Pro

Se Charles W. Burson, Attorney General and Reporter Jeffrey L. Hill, Assistant Attorney General For Defendant-Appellee

REVERSED A ND REMAN DED Opinion fi led:

W. FRANK CRAWFORD,

PRESIDING J

UDGE, W.S.

CONCUR: ALAN E. HIGH

ERS, JUDGE DAVID R.FARMER,

JUDGE Plaintiff, Gary Bernard Sanders, an inmate in the custody of the Tennessee Department of Correction (TDOC) at the Cold Creek Correctional Facility, appeals fr om an order of the trial court dismissing h

is complaint agains tthe defe ndant, Jim

mie L. Jone s, a correctional officer at1 Jones was sued in his individual capacity. Neither the State of Tennessee nor the Tenness ee Depa

rtment of Correct ion is a pa

rty to this s uit. 2 the facility. 1 San ders file d his civil rights complaint pursuant to 42 U.S.C. § 1983 (1994), which providesas follow s:

§ 1983. Civil action for deprivation of rights Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any S tate or Territory or the District of Columbia, sub

jects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws , shall be liable to t

he party i njured in an action at law, suit in equity, or other pro pe r procee ding for r

edress. Sanders alleges that Jones searched his cell and discovered legal re co rds and related materia ls and ordered him to discard the records or disciplina ry action would be initiated. Sanders is the prison’s law library clerk and acts as a jailhouse lawyer, and therefore, ha s an abundance of legal records. Sanders avers that he is being “harassed, intimidated

and scorn[ed]
on a regular basis with cell searches, ver bal abuse and threats of disciplinary action by Defenda nt Jones as a consequ ence of the Plainti ff’s refusal to d iscard r ecords g enerat

ed by his le ga l endeavors.” Because

Sanders did not dispose of his legal records, Jones filed two disciplinary reports at diffe

rent time s charging Sander s with having too much property in his cell. Sanders
avers that Jones has subjected hi m, and continue s to subject him, to re pulsive r emarks, discriminating cell sea

rches, a nd egreg ious noise

levels. H e also avers that Jones causes h im to report late for work, to mi ss meals, and to forego telephone privileges. Sanders aver s that Jones read the legal papers f

ound in his cell and told him that he did not have the right to assist other inmates w ith their l egal pro blems or p ossess the

ir reco rds in his c ell. Finally, Sanders a

lleges tha

t Jone s “willfully, deliberately and through callous in difference

harassed and intimidated the Plaintiff with disciplinary reports and other illici t conduct . . . caus [ing] Pla

intiff a g reat d eal of mental anguish and impact[ing] adversely upon Plaintiff’s right to access to the courts” and that Jones “willfully, knowingly and inten tionally carried out threats of disciplinary retaliation . . . maliciously abusing the disciplinary process.” On February 29, 1996, Jones filed a “Motion to Dismiss or for Summary Judgment.” He reliedupon a memorandum in support of the motion and his own affidavit. In his affidav it ,3

Jones stated tha

t he issue d Sander s a discip linary re port for exceed ing the am

ount of p roperty allowedin a cell. However, Jones denied that he rea d any of the legal materials and stated that he has ne ver har assed Sanders for

any lega l activitie s. On March 14, 1996, Sanders filed his response to Jones’s Motion to Dismiss. Sanders attached an affidavit in which he outlined in detail the verbal abuse and the harassment that he claims Jones has inflicted upon him. He al so attached nine exhibits including his law library clerk pass, his work schedule, grievances he filed, the disciplinary r eports, and copies of TDOC policy. Th e trial cou rt granted Jones’s motion, and the case was dismissed. In its order dismissing the case , the tria l court sta ted, “In mates lose

certain privileges as a natural result of incarceration. If an inmate is issued a disciplinary report as a result of exc eeding the amount of personal property allowed in his cell, this is not a matter for the Co

urts of Lauderdale County.” Because each party relied upon an affidavit, the “Motion to

Dismiss or f

or Summar

y Judgment

” will be treated as a motion for summary judgment pursuant to Tenn. R. Civ. P. 56. Sande rs appe als from the decision of the trial court and presents one issue for review: Whether he asser ted cogni zable c onstitution al claimspursuant to 42 U.S.C. § 1983 suff

icient to survive a motion for summary judgment. A trial court should grant a motion for summary judgm ent only if the movant demonstrates that ther

e are no genuine i ssues of material fact an d that the m oving par ty is entitled to judgment a s a matter of law. T enn. R. Civ. P. 56.03 ; Byrd v. Ha ll , 847 S.W.2d 208, 210 (Tenn. 1 993); Dunn v. Hack ett , 833 S.W.2d 78, 80 (Tenn. App. 1992). Theparty moving for summary judgment bears the burden of demonstrating that no genuine issue of material fact exists. Byrd , 847 S.W.2d at 210. On a motion for summary judgment, the court must consider the motion in the same manner as a motion for directed verdict made at the close of the plaintiff's proof; that is, "the court must take the strongest legitimate view of the evidence in favor of the nonmoving party, a

llow all re asonable

infere nces in f avor of t hat part y, and disc ard all counter vailing evidence ." Id . at 210-11. In Byrd , the Tennessee Supreme Court stated: Once it is shown by the moving party thatthere is no genuine4 issue of material fact, the nonmoving party must then demonstrate, by affidavits or disco very materia ls, that the

re is a genuine, material fact disput e to w arrant a trial. In this regard, Rule 56.05 provides that the nonmoving party ca nnot simply

rely upon his pleadings but must set forth specific facts showing that there is a genuine i ssue of ma

terial f act for trial. Id
. at 211 (e

mphasis in o

riginal) (citatio ns omitted). Whe re a genuine dispute exists as to any material fact or

as to the c onclusion s to be dra wn from those facts, a court must deny a motion for summary judgment. Id. (citing Dunn , 833 S.W.2d at 80). Suits for violations o f civil ri ghts callfor par

ticularl y close sc rutiny of motions for

summary ju dgment. Watson v. Norris , 729 F. Supp. 581, 583 (M.D. Tenn. 1989). Sanders a sserts tha

t he has a valid constitutional claim because Jones’s actions infringed
on his protected right of access to th e courts. It is well established that prisoners have a constitutional right of a

ccess to the cour ts. Bounds v. Smit

h , 430 U.S. 817, 821, 97 S.Ct. 1491, 1494 (1977). M e ani ngful access to the courts is the touchstone. Id. at 823, 97 S.Ct. at 1495. Inmate access to the courts must be adequate, e ffective, and meaningful. Id. Jones asserts t

hat Sande

rs’s inte rest in immediate ac cess to le gal p aperwo rk is outweighedby the State’s interest in providing a safeand healthy environment for the prisoners in its care. Reasona

ble restr ictions on direct a ccess to legal mat erials may be justified in light of legitimate penological interests in security. Skelton v. Pri-Cor, Inc. , 963 F.2d 100, 10 4 (6th Cir. 1991); see also Green v. Johnson , 977 F.2d 1383, 1390 (1 0th Cir. 1992) (holding that prison rules restricting the amount of legalmateria ls in an inma

te’s cell may be r

easonab le for orderly maintenance of the facility and proper security). Jones argues that the limitation o n storage space isreasona

ble and isrelated

to legitima

te safety concer ns, and the

refore , dismissal

was prop er. We b elieve th at there is more to t

his case than an issue o f storag e space and legit imate sec urity con siderati ons. Sande rs alleges harassment and abuse that have interfered with his right of acce ss to the courts. I n his aff idavit, Sa nders se ts forth facts of verbal abuse, punishment, and harassment that go beyond the issue of storage5

space. A state may

not constitutionally

harass, punish, or intimidate prisoners because of their effortsto assist inmates in gaining reasonable and meaningfulaccess to the courts. Vaughn v. Trotter , 516 F. Supp. 886, 893 (M.D. Tenn. 1980); see also Smith v. Maschner , 899 F.2d 940, 947 (10th Cir. 1990) (holding that prison officia ls may not r

etaliate against or hara ss an inma

te because of the inma

te’s exe rcise of his rightof acce ss to the c ourts); Campbell v . Beto , 460 F.2d 765, 768 (5th Cir . 1972) (holding tha t prisone r acce ss to the c ourts is no t t o be curtailed or restricted by threats, intimidation, coercion or punishment). Jones also argues that Sanders made absolutely no effort to show actual prejudice, which Jones claims is required to state a claim for violation of the right of ac cess to the courts . However, Sanders alleged harassment and intimidation that caused “a gre at deal of mental anguish and impacted adversely upon [his] right to access the c ourts.” It is wel l settled t hat a chilling effect on

one’s co nstitutiona

l rights constitutes a present injury in fact. See Muhammad
v. Pitcher , 35 F.3d 1081, 1083-84 (6th Cir. 1994) (quoting G & V Lounge v. Michigan Liquor Control Comm’n , 32 F.3d 1071, 1076 (6th Cir. 1994)). We believe

that Sande

rs’s comp laint asse

rts a cogniz able

claim under 42 U.S.C. § 1983 and that the disparities between Sanders’s affidavit and Jones’s affidavit present a genuine issue of material fact. Sanders stated specific fa cts in his affidavit that controvert the allegations made by Jones’s affidavit. In addition, there has been no showing that Sanders does not have the right to practice jailhouse law. Because a genuine issue of material fact exists, we hold that the grant of summary judgment was improper. Sanders also asse

rts that he alleged a prima f acie ca se of mali cious pro section in light of the fact that Jones issued two groundless disciplinary report s and thre atened t o issue mor

e if Sanders did not cooperate. In his com plaint, Sanders a

lleges tha t “Jones willfully, k

nowingly and intentionally carried out threats of disciplinary retaliation.” Jones argues that Sanders has
no constituti onally pr

otected right aga inst being falsely a ccused o f conduc t that doe s not result in the depr

ivation of a protected liber

ty intere st. Jones a sserts tha t no prote cted libe

rty interest s were imp licated b y the disc iplinary r eports.6 It is true that a claim bas ed solely on the filing of a disciplinary report does not state a constitutional claim. Meadows v. Miller , 855 F. Supp. 219, 221 (W.D. Tenn. 1994). However, Sanders alleges “disciplinary retal iation. ” Jail off icials ma y not reta liate aga inst “jail house lawyers ” for assisting indigent inmates. Tuggle v. Barksdale , 641 F. Supp. 34, 36 (W.D. Tenn. 1985); see als o Sp rouse v. Babcock , 870 F.2d 450, 452 (8th Cir. 1989) (holding that filing of
a disciplinary charge, although otherwise not

actionable under § 1983, is actionable under § 1983 if done in retaliation for the filing of a grievance pursua nt to established procedures). We believe the filing of disciplinary charges is actionable under § 1983 if filed in retaliation for exercising the constitutional right of access to the courts. In his affid avit, Sand ers sets f orth facts that cr

eate
a genuine issue of material fact concerning the r eason behind the filing of the disciplinary reports . The order of the trial court granting summary judgment to Jones is reversed, and this case is remanded to the trial court for such further proceedings as necessary. Costs of this appeal are assessed against the appellee.

_________________________________ W. FRANK CRAWFORD, PRESIDING J

UDGE, W.S. CONCUR:

____________________________________ ALAN E. HIGH

ERS, JUDGE

____________________________________ DAVID R.FARMER,

JUDGE