*Local rule 47.5 provides: “The publication of opinions that

have no precedential value and merely decide particular cases on

the basis of well-settled principles of law imposes needless

expense on the public and burdens on the legal profession.”

Pursuant to that Rule, the Court has determined that this opinion

should not be published.

 

1 The defendant’s motion was styled Motion to Dismiss or,

alternatively, Motion for Summary Judgment. The magistrate’s

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 95-50786

Summary Calendar

 

PEDRO MUNIZ, JR.

Plaintiff-Appellant,

versus

CURTIS CHILDERS & JOE WARREN

Defendant-Appellant.

 

Appeal from the United States District Court

For the Western District of Texas

(A-95-CV-289)

 

April 23, 1996

Before HIGGINBOTHAM, DUHÉ, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Pedro Muniz is a federal prisoner. He brought a Bivens action

against prison official Curtis Childers and his supervisor, Joe

Warren, alleging failure to protect and retaliation for exercise of

a constitutional right. The magistrate judge recommended granting

the defendant’s motion to dismiss.1 After Muniz filed objections,
report states that the recommendation is to “GRANT Defendant’s

Motion to Dismiss.” We will therefore construe the magistrate’s

disposition of this case as a dismissal under Fed. R. Civ. P.

12(b)(6) and review accordingly.

2

the district court adopted the magistrate’s report in toto, and

Muniz appealed. We reverse in part, affirm in part, and remand.

Initially, we agree with the district court that Muniz must

assert in more than a conclusory fashion that the decision to

return Muniz from protective segregation to general population was

made with deliberate indifference to his safety. He did not do so.

Muniz could not remain in protective segregation forever on the

basis of a single threatening note with no indication as to the

substance or continuation of the threat. In addition, we agree

with the district court that Muniz’s retaliation claim against

Warren similarly fails. Muniz failed to offer more than a

conclusion regarding the necessary element that any action of

Warren constituted a retaliatory response to Muniz’s exercise of

his constitutional rights. Finally, we note that Muniz has not

appealed the dismissal of his claims for injunctive relief. On

these three matters, we AFFIRM the district court’s decision.

Regarding the dismissal of Muniz’s claim of retaliation

against Childers, we REVERSE. Liberally construed, Muniz’s

complaint and subsequent pleadings allege that in response to

Muniz’s threat to file an administrative grievance, Childers had

Muniz transferred from more desirable duties to food services. The

pleadings further allege that before Muniz was released from

protective segregation, Childers again retaliated against Muniz’s
 

2 We gather from the complaint that a prisoner can earn money

for work in UNICOR. Plaintiff alleges that he wanted this money to

pay for job training that he could receive upon placement in a

halfway house.

3

threat to file an administrative grievance or a lawsuit by

arranging for Muniz to go back to food services instead of to

UNICOR,2 where plaintiff had been assigned just before a

threatening note necessitated the protective custody. The

pleadings allege that in response to plaintiff’ threat to file a

civil lawsuit, Childers ran Muniz from the laundry room and had him

transferred from laundry to kitchen duty. Muniz’s filings allege

that Childers informed plaintiff on several occasions that he would

label Muniz a snitch among the inmates, that he owned Muniz. Muniz

also alleges that Childers made these comments while making

reference to Muniz’s previous complaints about Childers to

Childers’ superior.

We agree with the district court that anything occurring

before Muniz complained to Childers’ supervisor or threatened to

file an administrative grievance and a lawsuit cannot give rise to

a Bivens claim. At most, before these threats, Childers was

retaliating against plaintiff for plaintiff’s request to be

transferred to a more desirable job. Because plaintiff concedes

that he has no constitutional right to a particular job, the

retaliation does not violate the constitution.

Our disagreement with the district court concerns Muniz’s

theory that Childers had plaintiff transferred to less desirable

jobs in direct response to Muniz’s file an administrative grievance
4

or a lawsuit. The district court dismissed these claims because

(1) the allegedly retaliatory conduct occurred before Muniz filed

suit, and (2) none of the claimed violations actually impeded

Plaintiff’s access to the courts or the grievance process. Neither

of these statements is an answer to Muniz’s claim. A deprivation

of the right of access to the courts occurs when a prison official

takes any act intending for that act to deter a prisoner from

filing a lawsuit or a grievance. See Gartrell v. Gaylor, 981 F.2d

254, 259 (5th Cir. 1993); Gibbs v. King, 779 F.2d 1040, 1046 (5th

Cir.), cert. denied, 476 U.S. 1117 (1986). Deterrence can occur

before the filing of suit, and a retaliatory or deterrent act need

not succeed in order to be unlawful. We also find that prisoners

had a clearly established right of access to the courts and to file

grievances before Childers’ alleged conduct, and thus that at least

at this stage of the litigation, Childers is not entitled to

qualified immunity. Id.

We therefore REVERSE the district courts Rule 12(b)(6)

dismissal of Muniz’s retaliation action against Childers and REMAND

for further proceedings.