IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI N O. 2015-CP-00033-COA BOBBY WILSON, JR. APPELLANT

v. TAMEKA EDWARDS, TOMMY FOSTER AND SYLVIA ROY APPELLEES

DATE OF JUDGMENT: 02/27/2015 TRIAL JUDGE: HON. MARGARET CAREY-MCCRAY COURT FROM W HICH APPEALED: SUNFLOW ER COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: BOBBY E. W ILSON JR. (PRO SE) ATTORNEY FOR APPELLEES: OFFICE OF THE ATTORNEY GENERAL BY: ANTHONY LOUIS SCHMIDT JR. NATURE OF THE CASE: CIVIL - OTHER TRIAL COURT DISPOSITION: DISMISSED APPELLANT’S COMPLAINT FILED UNDER TITLE 42, SECTION 1983 OF THE UNITED STATES CODE DISPOSITION: AFFIRMED - 08/30/2016 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE ISHEE, CARLTON AND JAMES, JJ. JAMES, J., FOR THE COURT: ¶1. Bobby W ilson Jr. a ppeals f rom the Sunf

lower County Circuit Court’s dism i ssal of his

com plaint f iled under title 42, s ection 1983 of the United S tates Code (2 0 1 2 ) against Mississippi Departm ent of Corrections (MDOC) Of f i cers Tam eka Edwards, Tom m y Foster, and Sy lvia Roy (collectively “Def endants”) in their individual capacities. Finding no error, we af f irm

. FACTS AND PROCEDURAL HISTORY ¶2. Wi l s o n h a s been an inm ate i n the custody of t he MDOC s ince 2004 af ter he w a sconvicted of robbery and sentenced to lif

e im prisonm ent as a habitual of f ender. ¶3. On July 9, 2014, W ilson f iled a section 1 9 8 3 c o mp l a i n t s e e k i n g a d e claratory judgm ent as well as com

pensatory and punitive d am ages against the Def e ndants. W ilson’s

com plaint alleged that the Def e n d a n t s r etaliated against him f o r exercising his First
Am endm ent right to f

reedom of speech. ¶4. W i lson’s com

p laint asserted that on March 25, 2014, he requested Of f icer Edwards
to o pen his cell door so he could use the restroom during daily two-hour d ay room activities. Of f icer Edwards ref

used and told him that the cell doors were o nly perm itted to be opened
every thirty m inutes. W ilson argued to Of f icer Edwards that the doors had not been opened in over an hour and that he would be f iling a grievance against her with MDOC. ¶5. W i lson also claim ed that around 10 p.m . that night, he p l a c e d a grievance against O f f icer Edwards in t he m ail. The grievance requested an investigation of dis c i p l i n a r y sanctions against Of

f icer Edwards f

or her ref usal to o pen his c e ll door. W i lson asserted that the next m orning, on March 2 6, 2014, he received a Rule Violation Report ( R V R ) w ritten by Of f icer E dwards. The RV R c i t ed W ilson f or m aking t hreatening and intim idating
statem ents to Of

f icer Edwards af

ter she ref

used to open his cell door. ¶6. Som etim e l a t e r w h e n r e g u lar m ail was being circulated, W ilson’s grievance was returned to him with a notice. The notice advised W ilson that his g rievance was im properly

m ailed, a nd instructed h im to subm it it in the “Adm inistrative Rem edy Program Black Box.” On March 29, 2014, W ilson properly subm itted his grievance as instructed. On A p r il 11, 2014, MDOC staf

f alerted W i lson that his grievance was accepted.

2¶7. On April 23, 2014, a disciplinary hearing w as held bef ore Lieutenant Roy on W ilson’s
RVR. W ilson argued that O f f icer Edwards issued an R

VR because he told her he would f ile

a grievance aga i n s t her. Lieutenant Roy f ound W ilson guilty of violating prison rules and sanctioned him w ith a loss of thirty day s of phone privileges. W ilson appealed the decision. On May 15, 2014, W arden R on King issued a F irst Step R e spon s e t o W ilson granting his RVR appeal. 1 ¶8. On July 21, 2014, Lieutenan t F o s t e r i s s u e d a F i r s t S t e p R esponse to W ilson’s grievance against Of

f icer Edwards. Lieutenant Foster s tated that he had spoken with Of f icer Edwards regarding t he cell-door incident. Lieutenant Foster determ i ned tha t O f f i c er Edwards had acted in a prof e ssional m anner and com

plied with the prison regulation that cell doors would be o pened only every thirty m inut e s . O n July 27, 2014, W ilson appealed Lieutenant Foster’s decision. ¶9. On Septem

ber 1 5, 2014, W ilson f

iled an am e n d e d s e c t i o n 1 9 83 com plaint in the circuit court. The com

plaint alleged: “[ Of

f icer] Edwards retaliated against [ W ilson] when [ he] exercised his First Am endm ent Right to Freedom of Speech o r alternatively when [ he] f iled a g r ievance with the Adm inistrative Rem edy Program af t er [ he] inf

orm ed h er that [ he] would f ile a grievance against her.” W ilson also c l aim ed that Of f icer Edwards f

iled a f alse

1 A cco r d in g to th e trial co u rt’s o rd er, Wilso n ’s R V R w a s ex p u n g ed f ro m h is f ile, b u t th ere i s n o ex p u n g em en t d eterm in atio n in th e r eco rd . Wilso n ’s co m p lain t alleg ed th at h is R V R w as ex p u n g e d , citin g “ E x h i b it D .” H o w e v er, E x h ib it D is sim p ly Ward en K in g ’s F irst S tep R esp o n se, d a ted M a y 1 5 , 2 0 1 4 , g r an tin g Wilso n ’s R V R a p p eal, w h ich stated : “[ Wilso n ] h as f

u lf illed th e req u irem en ts o f th e A d m in istrativ e R em ed y P r o g ram f o r an R V R ap p eal an d is elig ib le t o seek j u d icial rev iew w i th in 3 0 d ay s o f receip t o f th i s F irst S tep R e sp o n se.” 3RVR against him

.

¶10. On March 4, 2015, the trial court entered a n order on t he D e f e n d a n t s ’ mo t i o n to dism iss W ilson’s section 1983 com plaint. The trial court considered the Def endants’ m otion

as a request to dism iss W i lson’s com plaint f or f ailure to state a claim under Mississippi Rule of Civil Procedure 12(b)(6). ¶11. The trial court held: “W ilson’s verbal challenge of Of f icer Edward[ s]’s authority to enf orce prison r egulations, i.e., opening the cel l d o o r s every thirty m inutes, [ was] not a constitutionall y p r o t e cted right under the First Am endm ent.” The trial court also held: “W ilson’s threatened grievance based solely o n Of f icer Edward[ s]’s ref

usal to open the cell doors when he requested was f r ivolous and is insuf

f icient to support a claim f or retaliation under [ section] 1 983.” T he trial court c o n c l u d e d t hat W ilson’s com plaint f ailed to state a claim upon which relief

could be granted and dism issed his com plaint. ¶12. W i lson appeals arguing that the trial court erred by di s mi s s i n g h i s s e c t i o n 1983

com plaint. Finding no error, we af f irm

. STANDARD OF REVIEW ¶13. The trial c ourt is required to give a li b e r a l c o n s t r u c t i o n t o p r o se section 1983

com plaints, and we review a trial court’s conclusion that a com plaint is f rivolous f or abuse of discretion. Duncan v. Johnson , 14 So. 3d 760, 763 (¶4) (Miss. Ct. App. 2009). However,

“ [ t]he power to dism iss a f r ivolous com

plaint is distinct f

r om a trial court’s a

uthority t o dism iss f or f ailure to state a claim under Rule 12(b)(6).” Id

. A trial court has the authority
to dism iss a claim based on a n indi s p u t a bly m eritless l egal theory , as well a s the unusual

4power to pierce the v eil of the com plaint’s f actual allegations and dism iss t hose claim s whose f actual contentions are clearly baseless.” Id. DISCUSSION ¶14. “ M i ssissippi courts e xercise concurrent jurisdiction with our f ederal c o u n t e r p a r t s o v e r section 1983 claim s, but the elem ents of and the def enses to the cause of action a r e def ined by f ederal law.” Id. at 762 (¶3). “To state a valid claim f or r etaliation u nder section 1983,

a prisoner m

ust a llege (1) a specif

ic constitutional right, (2) the def e ndant' s intent to retaliate against the prisoner f

o r h is o r her exercise of that right, (3) a retaliatory adverse act, and (4) causation.” Bibbs v. Early , 541 F.3d 267, 270 (5th Cir. 2008). ¶15. “A prison of

f icial m ay not retaliate a g a i n s t o r h a rass [ a prisoner] f or com plaining through proper channels about a guard’s m isconduct.” Morris v
. Powell , 449 F.3d 682, 684 (5th Cir. 2006). However, “courts m u st take a skeptical view of retaliation claim s to avoid

m eddling in every act of discipline im posed by prison of

f i cials.” Lee v. King , N o. 1:13-CV566-KS-MTP, 2 015 W L 5554256, at *8 (S.D. M iss. Sept. 21, 2015) (citing Morris , 449 F.3d
at 684). As such, a “ signif icant burden” is placed o n the prisoner. W oods v. Smith , 60 F.3d 1161, 1 1 66 (5th Cir. 1 9 95) ( “To assure tha t prisoners do not inappropriately insulate them selves f

rom d isciplinary a ctions by drawing the shield of retaliation around them , trial
courts m ust caref u lly scrutinize [ retaliation] claim s.”). ¶16. A p risoner m

ust allege m ore than his personal belief that he is the victim of retaliation, and m ere conclusory allegations of retaliation will not be e nough to w ithsta n d a p roper

m otion f or dism issal of the c lai m . J ones v. Greninger , 1 88 F.3d 322, 325 (5th C ir. 1999).

5Also, a prisoner “m ust p roduce direct evidence of m otivation or, the m ore probable scenario, allege a chronology

of events f r om which retaliation m ay

plausibly be inf erred.” Id

. ¶17. W i lson claim s that Of f icer Edwards r etaliate d a g a i n s t h i m b y f i ling an RVR in response to his verbal threat that he would f ile a grievance against her f o r ref using to open the cell doors. However, “[ p]rison of f icials m ay

legitim ately

punish inm ates who verbally conf ront institutional authorit y w ithout running af oul of the First Am e ndm ent.” Freeman v. Tex. Dep’t of Criminal Justice , 369 F.3d 854, 864 (5th Cir. 2004). ¶18. Of f icer Edward s i s s u e d a n R V R citing W ilson w ith y elling e xplicit prof anity and threatening her af

ter she advised him that the d oors would o nly be o pened e very thi rty

m inutes in accordance with prison regulations. B e c a u s e prison of f icials m ay legitim ately
p unish prisoners w ho verbally conf ront i nstitutional authority w i t h o u t v i o l a t i n g t h e p r i s o n e r ’ s First Am endm ent rights, questioning a prison o f f icer as to his author i t y to enf orce prison regulations is not a protected activity under the F irst Am endm ent. Lann v
. Cockrell , 173 F. App’x 319, 321 (5th Cir. 2006). ¶19. W h ile it is true that a prisoner m a y f ile a grievance against an of f icer with whom he has a d isagreem ent, the First Am endm e nt does not protect a prisoner who publically verbally conf ronts an o f

f icer. Freeman , 369 F.3d at 864; see also Sampson v. K n o w l t o n , No. 5:10CV25, 2010 W L 3853319, at *8 (E.D. Tex. Aug. 1 9, 20 1 0 ) (holding that abusive language toward a correctional of f icer was not speech protected by the First Am e ndm ent). “A[ ] [ prisoner] does n o t have a constitutional right t o f i le a f rivolous com

plaint regarding

m atters that do n o t im

plicate his constitutional rights, a nd a f rivolous c om

plaint cannot

6support a [ s]ection 1983 ret a liation claim .” W ard v. Denmark , N o. 1 :13CV547, 2 015 W L 631966, at *4 (S.D. Miss. Feb. 13, 2015). ¶20. W i lson’s ve r

b a l t h r e a t t o O f

f icer Edwards that he w ould f ile a grievance was not a constitutionally protected right, a nd cannot s upport a section 1 983 retaliation c laim

. The trial
court d id not abuse its discretion in f inding that W ilson’s claim based on h is v erbal threat to f ile a grievance was f

rivolous. ¶21. As f

or W ilson’s alternative claim that Of f icer Edwards retaliated against him af ter he

a c t u a l l y f iled a grievance a gainst her, we f ind that he has f

ailed to state a valid cla i m. T o
state a v alid claim , W ilson m u st be prepared to establish that but f or the retaliatory m otive, the com plained o f incident, i.e., Of f icer Edwards f

iling the R

VR, would n ot have occurred. See W oods, 60 F.3d at 1166. ¶22. Based on W ilson’s com plaint, he did not properly subm it his grievance t hrough the Adm inistrative Rem edy Program until af ter he had received h is RVR. As a result, the RVR could not have been i n r e s p o nse to W ilson’s com plaint to higher authorities through the
proper channels. See Hanna v
. Maxwell , 415 F. A p p ' x 5 3 3 , 536 (5th Cir. 2011) (rejecting

a prisoner’s retaliation claim where the a lleged retaliation was not i n response to com plaints

m ade through proper channels). ¶23. Furtherm ore, the record does not show t h a t O f f i c e r E d wards was even aware that
W i lson had attem

pted t o f i le a grievance b ef

ore citing him with a n R

VR. See Simoneaux v. Epps , N o. 1:13-CV-531-MTP, 2015 W L 1197543, at * 3 (S.D. Miss. Mar. 13, 2015) (f inding that the r ecord did not dem onstrate that the d ef endant was aware of the prisoner’s g rievance

7against the d e f endant because “ [ t]enuous and speculative connections are by them selves insuf f icient to give rise to a c hronology f rom which r etaliation m ay p lausibly be inf erred.”). ¶24. W i lson of

f e red no direct evidence of a retaliatory

m otive. W ilson has a l so f ailed to allege a series of events f rom w h i ch a plausible r etaliation claim could be inf erred. Theref ore, W ilson has f

a iled to state a valid claim f or retaliation. ¶25. W i lson’s c o m

p l a i n t a l s o n a m e s L i e u

t e n a n t F o s ter and L ieutenant R oy as the rem aining Def endants, y et his com

p laint w hol l y f

a i l s t o allege how t hey retaliated against him

. W i lson’s c om

plaint m ust allege f

acts r ef lecting each Def

endant’s participation in t he alleged

w r o n g , s pecif

y ing the personal involvem ent of each D ef endant. Burris v
. Davis , 642 F

. Supp. 2d 573, 578 (S.D. Miss. 2009). W ilson’s com plaint m erely s t ates that L ieutenant
Foster was “responsible f

or screening [ RVRs]” and approved the RVR that O f f icer Edwards had i ssued to W ilson. Likewise, the com plaint m e rely stated t hat Lieutenant Roy was “responsible f

or conducting disciplinary hearings f

or prisoners accused o f breaking prison rules[ ,]” and f

ound him guilty of violating prison rules af ter a hearing. B ecause W ilson has f ailed to specif

y any alleged wrong of

Lieutenant Roy and Lieutenant Foster, he has f ailed to state a valid claim

f o r retaliation against them

.

CONCLUSION ¶26. For these reasons, we af f irm the trial court’s dism issal of W i lson’s com

plaint. ¶27. THE J UDGMENT O F THE SUNFLOWER COUN T Y C I R C UIT C OURT IS AFFIRMED. ALL C OSTS OF THIS APPEAL A RE ASSESSED TO SUNFLOWER COUNTY.
L E E , C . J . , G R I F F I S , P . J . , B A R N E S , I S H EE, CARLTON, FAIR, W I L S O N A N D GREENLEE, JJ., CONCUR. IRVI N G , P . J . , CONCURS IN PART AND IN THE

8RESULT WITHOUT SEPARATE WRITTEN OPINION.

9