*

The Honorable James G. Carr, Unit

Northern District of Ohio, sitting by desi

1

RECOMMENDED FOR FULL-

Pursuant to Sixth Circ

ELECTRONIC CITATION: 2000 F

File Name: 00a0

UNITED STATES COU

FOR THE SIXTH 

____________

ISSAC LYDELL HERRON,

Plaintiff-Appellant,

v.

JIMMY HARRISON, et al.,

Defendants-Appellees.

Appeal from the United St

for the Western District of Te

No. 96-03051—J. Daniel Bre

Submitted: Decem

Decided and Filed: Feb

Before: COLE and GILMAN, 

District Jud
2 Herron v. Harrison, et al. No. 98-5726

_________________

COUNSEL

ON BRIEF: Pamela S. Lorch, OFFICE OF THEATTORNEY GENERAL, CIVIL RIGHTS & CLAIMSDIVISION, Nashville, Tennessee, for Appellees. Issac L.Herron, Only, Tennessee, pro se.

_________________

OPINION

_________________

RONALD LEE GILMAN, Circuit Judge. Issac L. Herron,

a Tennessee state prisoner, filed a civil rights complaintagainst various officials of the Cold Creek CorrectionalFacility and the Tennessee Department of Corrections(collectively, CCCF officials) pursuant to 42 U.S.C. §§ 1983,1985, and 1986. Herron alleges that those officials violatedhis civil rights both directly, by burdening the exercise of hisconstitutional rights, and indirectly, by retaliating against himfor exercising those rights. The magistrate judge to whom thecase was transferred dismissed Herron’s complaint for failureto state a claim upon which relief may be granted, finding thatthe majority of Herron’s claims did not allege sufficient factsto constitute unlawful retaliation and the remainder of hisclaims were barred by issue preclusion due to prior suits thatHerron had brought. 

On March 8, 1999, several months after the briefs in this

appeal were filed, this court issued its en banc decision inThaddeus-X v. Blatter, 175 F.3d 378 (6th Cir. 1999), whichclarified the burden borne by a prisoner alleging retaliationclaims. Under the Thaddeus-X standard, one of Herron’sallegations of retaliation potentially states a claim upon whichrelief may be granted. We therefore AFFIRM in part,

REVERSE in part, and REMAND for further proceedingsconsistent with this opinion. 

No. 98-5726 Herrohe asserts that “[t]he acts and prdescribed in . . . this complaint Fourteenth Amendment right againreligion.” He has not, however, alreligious discrimination outside considered and dismissed in Herromay not be raised again. See MonU.S. 147, 153 (1979) (“Under res on the merits bars further claims based on the same cause of action

III. CONCLU

For all of the reasons set forth a

magistrate judge’s order of dismclaim found in Herron’s first supREMAND for further proceediopinion. We AFFIRM the dismHerron’s claims.
10 Herron v. Harrison, et al. No. 98-5726

authority.” Under the properstandard expressed in ThaddeusX, however, this court has found that placing an inmate in

administrative segregation “could deter a person of ordinaryfirmness from exercising his First Amendment rights.”Dunham-Bey v. Holden, No. 98-15220, 1999 WL 1023730, at*2 (6th Cir. Nov. 5, 1999). See also Gibbs, 10 F.3d at 378

(stating that segregation of a jailhouse lawyer in retaliation forproviding legal aid would be constitutionally impermissible).

With the exception of demonstrating that his assistance was

needed by Muhammad, then, Herron has made out a primafacie claim of First Amendment retaliation under Thaddeus-X.He alleged that he engaged in protected conduct (legalassistance), that he was subsequently disciplined to a degreethat might deter an ordinary person from such conduct, andthat the two incidents were causally linked. Should Herronproduce evidence showing that the inmate he assistedrequired that assistance, he will have established all threeelements of a prima facie claim of unconstitutional retaliation.We therefore reverse the magistrate judge’s dismissal of theretaliation claim alleged in Herron’s first amended complaintand remand to allow Herron to amend his complaint if he sochooses.C. Herron’s equal protection claim

The magistrate judge properly dismissed Herron’s equal

protection claim, which was raised in both his original andsupplemental complaints. An equal protection claim mustassert that the plaintiff suffered class-based discrimination.See McCleskey v. Kemp, 481 U.S. 279, 292 (1987); Henry v.Metropolitan Sewer Dist., 922 F.2d 332, 341 (6th Cir. 1990)(“To state a claim under the Equal Protection Clause, a§ 1983 plaintiff must allege that a state actor intentionallydiscriminated against the plaintiff because of membership ina protected class” (citation and internal quotation marksomitted)). In his original and first supplemental complaints,Herron invokes the Equal Protection Clause withoutidentifying the protected class to which he belongs. Herronis more specific in his second supplemental complaint, where

No. 98-5726 Herro

I. BACKGRO

Herron brought two earlier lawsu

at CCCF before initiating this suitan action titled Herron v. Bradley

Religious Freedom Restoration § 2000bb, and his First Amendmenof religion. In that case, Herron chpurposely interfering with his obsand services as a member of the charged prison officials with terminating the visitation privilegreligious volunteer who had led Chprison. 

At an evidentiary hearing in t

alleged that prison officials wertransferring him to another instituattempts to seek legal redress againMarch 28, 1997, the district courto temporarily enjoin CCCF officiaanother facility. The district couprovided Herron with a valid First ACCCF officials were therefore nagainst Herron for asserting that cCourt issued its opinion in City of B507 (1997), overruling RFRA and grounds for Herron’s complaint, thpreliminary injunction and dismis

In his second case, Herron v. Ca

of 1995, Herron alleged unconstitufund-raising activities of the Chu(CGCC), a church that Herron hawas dismissed in January of 1997 ohad no standing to raise the corporalawyer, had no right to argue on it

In the present case, filed in O

charges CCCF officials with a seriesome of which are new and other
4 Herron v. Harrison, et al. No. 98-5726

Herron’s prior lawsuits. First, in his original complaint,Herron charges defendants with unconstitutional retaliationagainst the exercise of his First Amendment right to seeklegal redress. Herron relates that he has filed severalgrievances on his own behalf, as well as on behalf of a groupof Muslim inmates. In retaliation, he alleges that prisonofficials interfered with his religious services, denied hisrequest to conduct business on behalf of CGCC, suspendedhis wife’s visitation privileges, terminated him from hisprison job, and ordered him transferred to the South CentralCorrectional Center (SCCC). (Herron was not, in fact,transferred to SCCC, although he was subsequentlytransferred to Turney Center Industrial Prison—a move thathe does not challenge in this case).

In his first supplement to the pending complaint, Herron

charges three CCCF officials with taking further retaliatoryactions against him for appearing before the institutionalgrievance board on behalf of a fellow inmate, Abu BakarMuhammad. Two days after his appearance, Herron allegesthat defendant Tuggle approached Herron while Herron wasvisiting with his wife and instructed him to put his feet underthe table. Herron and Tuggle then entered into a dispute overthe validity of this rule. Herron was later charged with andconvicted of creating a disturbance, and sentenced to fivedays of punitive segregation, thirty days’ loss of visitationprivileges, two months’ loss of package privileges, and aninfraction fine of three dollars. Herron claims that thedisciplinary action was taken in retaliation for his havingasserted his First Amendment rights to file grievances and toprovide legal assistance to another inmate. He also allegesseveral violations of his due process rights in the conduct ofhis disciplinary proceeding and sentencing. 

Finally, in his second supplement to the pending complaint,

Herron alleges that his right to privacy was violated whenprison officials requested an additional copy of the charterand bylaws of CGCC. When Herron declined this request,CCCF officials allegedly retaliated against him by firingBrunken from his position as a religious volunteer. Herron

No. 98-5726 Herroown First Amendment rights. The Herron’s failure to allege that assistance warrants dismissal of hstated above, a pro se plaintiff’s dismissed under Rule 12(b)(6) if inot be appropriate under any set of See Estelle, 429 U.S. at 106. Such 

The case of Gibbs v. Hopkins, 10 

is directly on point. In that case, an officials retaliated against him for to other inmates. Like Herronneglected to allege that his servicinmates’ right of access to the coursummary judgment to the defendanOn appeal, this court reversed an“[w]e . . . believe that Gibbs shoulcomplaint to properly allege a conof access to the courts, including ano reasonable alternatives which efor the prisoners at the Chippewa at 379. Given the fact that Rdemanding burden on a plaintiff thbe incongruous to dismiss Herron’of Gibbs’s reversal of summary juthe same omission.

As an alternative ground for it

judge also concluded that none of tHerron alleges in his first supplemlevel of impermissible retaliation. upon pre-Thaddeus-X precedenmistakenly applied the general retathat allege retaliation against HAmendment rights. Thus, regardiallegation that he was sentenced to segregation in retaliation for amagistrate judge found that “a prisand confinement to segregation fneither shocks the conscience 
8 Herron v. Harrison, et al. No. 98-5726

dismissed Herron’s entire complaint as frivolous in an orderdated July 7, 1997, after RFRA was overruled.

In the same order vacating the preliminary injunction, the

district court stated that “[a]s Herron has no claim forinterference with his First Amendment rights, he has no claimfor retaliation . . . .” Herron therefore may not now allegespecific retaliation by prison officials against him for pursuingthe free exercise claims that were dismissed as frivolous inBradley. To the extent that Herron is alleging a general claimof retaliation, the retaliatory acts alleged by Herron in thiscomplaint, such as the suspension of his wife’s visitationprivileges and a threatened transfer to another facility, fall farshort of the “shock the conscience” test.

2. Herron’s right to provide legal assistance to othersHerron’s other retaliation claim, contained in his first

supplemental complaint, alleges that CCCF officialsimpermissibly disciplined him for assisting Abu BakarMuhammad in arguing a grievance before the prison board.The magistrate judge dismissed this claim, recognizing theprinciple that an inmate does not generally have anindependent right to help other prisoners with their legalclaims. See Thaddeus-X, 175 F.3d at 395. Such assistance isprotected, however, when the inmate receiving the assistancewould otherwise be unable to pursue legal redress.Assistance is then protected as a derivative of thecomplainant’s right of access to the courts. See Thaddeus-X,175 F.3d at 395; Gibbs v. Hopkins, 10 F.3d 373, 378 (6th Cir.

1993). As an example, the assisting inmate in Thaddeus-X

was found to have engaged in protected conduct because thecomplainant had no knowledge of the law, was being held inadministrative segregation, and could only access legal booksby requesting them by title. 

Herron does not assert in his complaint that Muhammad

would have been unable to obtain access to the courts withouthim. Indeed, it appears that Herron is unaware of thisrequirement, because his brief erroneously asserts that hislegal work on behalf of other inmates is protected by Herron’s

No. 98-5726 Herroclaims that his First Amendment rireligion were thereby infringed becwas unable to observe the Feast omanner, congregate for Sabbath eacts of charity, or produce his churchim of the opportunity to associate maintains that prison officials associate and his right to privacclaims that he was singled out for dbasis of his religious affiliation, Protection Clause of the Fourteenoriginal and supplemental compofficials with parallel violations of t

On October 21, 1997, the defend

of Herron’s complaints for failure trelief may be granted. By order dmagistrate judge to whom the casconsent of the parties granted Hesecond supplemental complaint, granted the prison officials’ motion claims pursuant to Rule 12(b)(6) of Procedure. Herron filed a timely no1998. 

II. ANALY

A. Standard of review  We review a trial court’s decidismiss de novo. See Weiner v. Kl(6th Cir.1997). When considerpursuant to Rule 12(b)(6) of thProcedure, the trial court must accthe complaint as true, and construe favor of the plaintiff. See Miller v(6th Cir.1995). A pro se plaintiffespecially liberal standard, and shofailure to state a claim if it appeaplaintiff can prove no set of fact
6 Herron v. Harrison, et al. No. 98-5726

which would entitle him to relief.” Estelle v. Gamble, 429U.S. 97, 106 (1976) (citation omitted).B. Herron’s allegations of impermissible retaliation

The primary thrust of Herron’s complaint is that CCCF

officials impermissibly retaliated against him for exercisinghis First Amendment right to file grievances and petition thecourts for redress. In March of 1999, eight months afterHerron had filed his appeal in this case, an en banc panel ofthis court decided Thaddeus-X v. Blatter, 175 F.3d 378 (6thCir. 1999). Thaddeus-X clarified the law governing prisonerretaliation claims where the retaliation is alleged to have beendirected at an inmate’s efforts to litigate on behalf of himselfor others. As the most recent, on-point decision of this court,Thaddeus-X is controlling, despite the fact that Herron did notbring the case to our attention as a supplemental authority.

There are two categories of retaliation claims—general

claims of retaliation and claims that allege that an individualwas retaliated against for the exercise of specificconstitutional rights. Thaddeus-X clarifies the elements of

each category and supplants previous cases that had blurredthe lines between the two. General claims of retaliation arebrought under the Due Process Clause of the FourteenthAmendment. To state a successful case of general retaliation,a prisoner must establish “an egregious abuse ofgovernmental power” or behavior that “shocks theconscience.” See id. at 387. In the great majority of cases,

inmates are unable to survive summary judgment under thisdemanding standard. The rare exceptions have been in caseswhere, for example, a prison official issued death threatsagainst an inmate with a cocked pistol at his head, or whereprison officials trumped up false disciplinary charges againstan inmate and then proceeded to physically abuse him andlevy harsh disciplinary sanctions against him. See Cale v.Johnson, 861 F.2d 943, 950-51 (6th Cir. 1988) (citing cases).

The second category of retaliation claims involves

allegations that state officials penalized an individual for theexercise of a specific constitutional right. In such cases, an

No. 98-5726 Herroinmate bears a lesser burden, and ithe following three elements: (protected conduct, (2) an adverse adeter a person of ordinary firmness in that conduct, and (3) the adversleast in part, by the inmate’s Thaddeus-X, 175 F.3d at 394.

1. Herron’s right to pursue hiAn inmate has an undisputed Fir

grievances against prison officialNoble v. Schmitt, 87 F.3d 157, 162 is protected, however, only if the grSee Lewis v. Casey, 518 U.S. 343someone of a frivolous claim . . . dall, except perhaps the punishmenProcedure 11 sanctions.”). Thus claims against CCCF officials in previous cases was protected condthe underlying claims had merit.

Herron’s only claim of retaliati

own right of access to the courts icomplaint. In that complaint, he deactions that CCCF officials allegefiling a lawsuit in Herron v. Braprison officials with violating his the free exercise of religion. HerrCCCF officials suspended his wterminated his job, and ordered him all in retaliation for his filing a leg

The underlying free exercise cla

these incidents of retaliation weIndeed, concerned by Herron’s allegmight retaliate against Herron for 

district court issued a preliminary inofficials from transferring Herron tcase was pending. Ultimately,