*

The Honorable Bobby R. Baldock, Circuit Judge of the United States

Court of Appeals for the Tenth Circuit, sitting by designation.

1

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2004 FED App. 0235P (6th Cir.)

File Name: 04a0235p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

DAVID J. SCOTT,

Plaintiff-Appellee,

v.

PATRICK CHURCHILL,

Inspector, Carson City

Regional Facility, et al.,

Defendants,

PHILIP BAIR,

Defendant-Appellant.

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No. 03-2427

Appeal from the United States District Court

for the Western District of Michigan at Grand Rapids.

No. 95-00571—David W. McKeague, District Judge.

Argued: June 11, 2004

Decided and Filed: July 23, 2004 

Before: SILER, MOORE, and BALDOCK, Circuit

Judges.*

2 Scott v. Churchill, et al. No. 03-2427

_________________

COUNSEL

ARGUED: Kevin R. Himebaugh, OFFICE OF THE

ATTORNEY GENERAL, Lansing, Michigan, for Appellant.

S. Grace Davis, MILLER, JOHNSON, SNELL &

CUMMISKEY, Grand Rapids, Michigan, for Appellee.

ON BRIEF: Kevin R. Himebaugh, OFFICE OF THE

ATTORNEY GENERAL, Lansing, Michigan, for Appellant.

S. Grace Davis, David R. Cleveland, MILLER, JOHNSON,

SNELL & CUMMISKEY, Grand Rapids, Michigan, for

Appellee.

_________________

OPINION

_________________

KAREN NELSON MOORE, Circuit Judge. DefendantAppellant Philip Bair (“Bair”) appeals from the denial of

qualified immunity in Plaintiff-Appellee David J. Scott’s

(“Scott”) § 1983 suit against him. Scott, a prisoner at the

Michigan Department of Corrections Carson City Regional

Facility, alleges that Bair, a guard at the facility, retaliated

against Scott’s exercise of his First Amendment rights by

filing a false major misconduct ticket against Scott. This is

the third time this court has heard an appeal in this case on the

issue of the proper standard governing prisoner First

Amendment retaliation claims; contested in this appeal is the

standard that would have been apparent to a reasonable

officer when the underlying events took place, in July of

1995. Because this court’s case law in July of 1995 would

have put a reasonable officer on fair warning that his conduct

was illegal, the denial of qualified immunity is AFFIRMED.
No. 03-2427 Scott v. Churchill, et al. 3

1

There seems to be some confusion in Scott’s materials as to when

the events took place, on July 6 or July 7. The dates on each of the prison

forms indicate that the incident took place and the Misconduct Charge

was filed on July 6. Although Thomas’s affidavit indicate s that he

overheard this conversation on the morning of July 7, the conversation

itself could only have happened on July 6. Given that Thomas’s affidavit

was filed a year after the incident, it is reasonable to assume that this was

an insignificant error, rather than evidence of unreliability.

I. BACKGROUND

As the nonmoving party, it is Scott’s version of the facts

which must be relied upon. On July 6, 1995, Scott was

required to meet with a hearing officer on an unrelated

misconduct ticket. Upon Scott’s checking in with Bair to

gain entry to the building, Bair said to Scott of his misconduct

ticket, “[T]hat doesn’t surprise me.” Joint Appendix (“J.A.”)

at 174. Scott asked Bair to explain this remark and indicated

that he was considering filing a grievance against Bair. At

that point, Bair walked over to where Scott was standing and

stated, “You don’t know who you’re f---ing with.” J.A. at 34.

Bair then grabbed the back of Scott’s neck and continued,

“You want to f--- with me, b----!”. J.A. at 34. Later that day,

Scott submitted a grievance against Bair, reciting facts

consistent with his later allegations in the complaint. The

following day, on July 7, Bair filed a Major Misconduct

Charge against Scott for insolence. A Major Misconduct

Charge can result in a higher security classification,

placement in administrative segregation, or forfeiture of

good-time credits. On July 27, a hearing was held on the

Misconduct Charge, and the charge was “not sustained,” with

the hearing officer indicating that Bair’s credibility was

“questionable,” relying in part on the fact that the Misconduct

Charge was filed “24 hours later, after the inmate had claimed

to have been assaulted.” J.A. at 147.

Scott also submitted below an affidavit from a fellow

inmate at the facility, Richard F. Thomas (“Thomas”), who

claims to have overheard a conversation on July 61 between

4 Scott v. Churchill, et al. No. 03-2427

Bair and another guard, Dale Feldpausch (“Feldpausch”).

Thomas stated that Bair described the events of the morning

to Feldpausch, consonant with Scott’s version of the facts.

Bair told Feldpausch that he did not like Scott, due to Scott’s

repeated conflicts with Feldpausch over Scott’s jailhouse

lawyer activities. Feldpausch recommended to Bair that in

order to cover up his wrongdoing, Bair should write a false

ticket against Scott, alleging that Bair had patted down Scott

after a verbal threat — the version of events Bair would

ultimately write up in the Misconduct Charge. Thomas also

stated that Feldpausch had told Bair that to conceal more

effectively his wrongdoing, Bair should have immediately

written the false ticket and taken Scott to administrative

segregation.

On August 16, 1995, Scott filed suit pro se against a host of

defendants on various claims, including a claim against Bair

for retaliation against Scott’s exercise of First Amendment

rights. The district court initially dismissed Scott’s

complaint, on August 31, 1995. In response to a motion by

Scott for rehearing, the district court reinstated Scott’s

Fourteenth Amendment and First Amendment retaliation

claims but affirmed the dismissal of his Eighth Amendment

claim. Scott filed an amended complaint, and on August 19,

1996, the defendants moved to dismiss or for summary

judgment, which latter motion was granted on August 28,

1997. This was a grant of summary judgment on the merits,

rather than on the basis of qualified immunity. Scott appealed

to this court, which initially affirmed the grant of summary

judgment in an unpublished order dated December 9, 1999.

See Scott v. Churchill, No. 97-2061, 1999 WL 1206937 (6th

Cir. Dec. 9, 1999). Scott filed a motion for rehearing, which

was granted in a second unpublished order, on April 6, 2000.

The order affirmed the dismissal of most of Scott’s claims,

but, applying the standards of Thaddeus-X v. Blatter, 175

F.3d 378 (6th Cir. 1999) (en banc), reinstated Scott’s

retaliation claim against Bair and remanded the case for

further proceedings. See Scott v. Churchill [Scott I], No. 97-

2061, 2000 WL 519148 (6th Cir. April 6, 2000). On remand,
No. 03-2427 Scott v. Churchill, et al. 5

counsel was appointed for Scott, and Bair filed for summary

judgment on the basis of qualified immunity on July 24,

2000. That motion was granted on March 29, 2001, on the

basis that the clearly established law at the time of the

incident would have put a reasonable officer on notice only

that behavior “shocking to the conscience” could support a

retaliation claim. Scott appealed again to this court; six

weeks before the case was argued, this court issued Bell v.

Johnson, 308 F.3d 594 (6th Cir. 2002), holding that in 1994,

the “shocks the conscience” test was not the clearly

established law governing retaliation claims, and that some

lesser standard governed the qualified immunity

determination. The panel deciding Scott’s appeal relied on

Bell in reversing the grant of summary judgment on the basis

of qualified immunity. In an unpublished opinion, the panel

stated that

The [Bell] court concluded that as early as 1989, the

applicable standard for evaluating an adverse action

undertaken in retaliation for an individual’s exercise of

his or her First Amendment rights is whether it is capable

of deterring a person of ordinary firmness from

exercising [such] rights . . . .

In light of Bell, we REVERSE the district court’s

decision, and REMAND to the district court for

reconsideration.

Scott v. Churchill [Scott II], No. 01-1625, 2003 WL 77208,

*1-*2 (6th Cir. Jan. 8, 2003) (internal quotation marks

omitted). Upon remand for reconsideration, the parties

briefed the qualified immunity issue in light of Bell and of the

remand, and the district court denied qualified immunity to

Bair. Bair timely appeals.

6 Scott v. Churchill, et al. No. 03-2427

II. ANALYSIS

A. Standard of Review

We review de novo the denial of summary judgment on the

basis of qualified immunity. Bukowski v. City of Akron, 326

F.3d 702, 707 (6th Cir. 2003). Such a denial, to the extent it

turns upon issues of law and not of disputed fact, is

immediately appealable as a final order. Mitchell v. Forsyth,

472 U.S. 511, 530 (1985); Weaver v. Shadoan, 340 F.3d 398,

406 (6th Cir. 2003).

B. The Elements of a Retaliation Claim

Under Thaddeus-X, in order to establish a First Amendment

retaliation claim, a prisoner must demonstrate that he was

(1) engaged in protected conduct; (2) that he suffered an

adverse action; and (3) that a causal connection exists

between the protected conduct and the adverse action. 175

F.3d at 394. In order for the retaliation to be actionable, it

must be “capable of deterring a person of ordinary firmness

from exercising his or her right to access the courts.” Id. at

398. At this point in the litigation, it is settled that Scott has

made out a case that can survive summary judgment on the

merits; the only remaining question is qualified immunity.

An official defendant in a § 1983 suit is entitled to qualified

immunity if her conduct “does not violate clearly established

statutory or constitutional rights of which a reasonable person

would have known.” Bell, 308 F.3d at 601 (internal

quotations omitted).

C. The Effect of the Prior Panel Decision

Scott argues as a preliminary matter that Scott II, containing

the statement that under Bell v. Johnson, the clearly

established right at the time of the events underlying the

instant case was to be free from adverse action which would

have deterred a person of ordinary firmness from exercising

First Amendment rights, was binding upon the district court
No. 03-2427 Scott v. Churchill, et al. 7

and is binding upon this court. He cites the doctrine of law of

the case, in particular the mandate rule, and a line of cases

holding that where a party fails to seek reconsideration of an

opinion containing a misstatement of law or fact, she forfeits

the right to argue that the opinion was erroneous in

subsequent proceedings.

Bell nowhere makes the explicit statement that the

Thaddeus-X standard is to be used when judging whether

state officers’ actions violated clearly established law at the

time of the incidents in Bell, and by extension in this case.

Instead, Bell indicates that the “shocks the conscience”

standard is not to be used, relies on two cases, Gibbs v.

Hopkins, 10 F.3d 373 (6th Cir. 1993), and Newsom v. Norris,

888 F.2d 371 (6th Cir. 1989), as clearly establishing a

prisoner’s right to be free from retaliation for exercising First

Amendment rights, and holds that the events at issue in Bell

— a search of a prisoner’s cell and confiscation of his legal

papers and medical diet snacks — meet the threshold level of

retaliation established in Gibbs and Newsom. Bell, 308 F.3d

at 608-13. Therefore, Scott II’s statement regarding Bell is

not a correct description of Bell’s holding. Scott argues that

the prior panel’s statement should nonetheless control when

assessing whether Bair’s actions were objectively

unreasonable in the face of clearly established law. Scott I

held explicitly that Scott could survive summary judgment on

the merits of his claim under the Thaddeus-X standard;

therefore, if Scott II’s assertion that the Thaddeus-X standard

was the clearly established law of this circuit in 1988 is

binding as law of the case, Bair’s claim of qualified immunity

necessarily fails, without further analysis.

The law-of-the-case doctrine “posits that when a court

decides upon a rule of law, that decision should continue to

govern the same issues in subsequent stages in the same

case.” Arizona v. California, 460 U.S. 605, 618 (1983).

However, the doctrine merely “directs a court’s discretion, it

does not limit the tribunal’s power.” Id.; see also Gillig v.

Advanced Cardiovascular Sys., Inc., 67 F.3d 586, 589-90 (6th

8 Scott v. Churchill, et al. No. 03-2427

Cir. 1995). “In essence, the mandate rule is a specific

application of the law-of-the-case doctrine.” United States v.

Campbell, 168 F.3d 263, 265 (6th Cir. 1999). “The basic

tenet of the mandate rule is that a district court is bound to the

scope of the remand issued by the court of appeals.” Id. The

scope of a remand is determined by examining the entire

order or opinion, to determine whether and how the court of

appeals intended to limit a remand. Id. at 266-68. In the

instant case, our opinion in Scott I had already determined

that Scott’s retaliation claim against Bair could survive

summary judgment under the Thaddeus-X standard; had the

panel of our court meant in Scott II to hold that the ThaddeusX standard was the appropriate one to be used in gauging

qualified immunity, our panel presumably would have

remanded with instructions to deny Bair’s motion and

proceed to trial. Instead, the opinion as a whole makes clear

that the district court is to reconsider Bair’s motion “[i]n light

of Bell.” Scott II, 2003 WL 77208 at *2. “The issue

presented by Scott [the appellant in Scott II], and resolved in

Bell, is the applicability of the ‘shocks the conscience’

standard to prisoner First Amendment retaliation claims

alleging conduct in 1995.” Id. at *1. Given the discretionary

nature of the law-of-the-case doctrine, the clear misstatement

of Bell’s holding by Scott II, and the failure of Bair’s

qualified immunity claim under Bell’s actual holding, as

detailed below, we decline to consider Scott II’s statement as

binding upon the district court below or on this court now.

Finally, Scott cites to cases which take a dim view of a

party’s assertion that a previous panel opinion made a

misstatement of law or fact in a subsequent appeal where no

motion for reconsideration under Federal Rule of Appellate

Procedure 40 was filed. See Campbell v. United States, 592

F.2d 309, 312 (6th Cir. 1979) (a party “may not ignore [Fed.

R. App. P. 40]” and attempt to seek reconsideration of a

ruling through subsequent litigation); United States v.

Gargotto, 510 F.2d 409, 412 (6th Cir. 1974) (“In the absence

of [a petition under Fed. R. App. P. 40], those issues cannot

be re-considered”). These cases add little to Scott’s initial
No. 03-2427 Scott v. Churchill, et al. 9

law-of-the-case argument: Bair could have reasonably

believed that the case was being remanded for briefing to the

district court on the issue of qualified immunity in light of

Bell, and not in light of the less than accurate statement of

Bell’s holding in Scott II.

D. Qualified Immunity Under Bell

The district court in the instant case, after this court’s first

remand in Scott I, held that the clearly established law at the

time of the incident was the “shocks the conscience” standard.

On appeal, Scott II noted that Bell had effectively overruled

that legal conclusion, and remanded for consideration in light

of Bell. Bell relied on two cases in concluding that behavior

short of that which “shocks the conscience” was clearly

established as unlawful in 1994, the time of the incidents in

Bell: Gibbs, 10 F.3d at 378-80, and Newsom, 888 F.2d at

374-77. In attempting to distinguish his case from Gibbs and

Newsom, Bair first argues that Gibbs and Newsom provide no

clear standard, and thus qualified immunity must be granted

— an argument clearly foreclosed by Bell. Bair then argues

that neither case is factually similar to his, focusing on the

type of adverse action taken — the filing of a false

misconduct charge against the prisoner — rather than the

protected conduct at issue. In Gibbs, plaintiff prisoner alleged

that he was kept in administrative segregation as retaliation

for his activities as a jailhouse lawyer, 10 F.3d at 378-80; in

Newsom, plaintiff prisoners alleged that they had not been

reappointed to their positions as inmate advisors in retaliation

for complaints they had made about the Chairman of the

Disciplinary Board, 888 F.2d at 374-77. In attempting to

distinguish the situation at bar from Gibbs and Newsom, Bair

argues that Scott suffered no tangible harm. But this

argument is misguided: Bair could not know at the time he

committed the unconstitutional action, filing a misconduct

charge, that Scott would be exonerated of that charge. That

Scott may have suffered less harm than other plaintiffs may

be relevant in determining whether or not he has a claim on

the merits of a constitutional violation, but that Bair’s

10 Scott v. Churchill, et al. No. 03-2427

unconstitutional action was ultimately unsuccessful does not

make Bair’s action any less unconstitutional. Circumstances

outside Bair’s control stopped his attempt at retaliation from

being perfected, but had Bair performed the exact same action

and the hearing officer not cleared Scott of misconduct

charges, Scott would have faced disciplinary segregation or

the loss of good-time credits — which would necessarily be

an actionable harm after Gibbs, where plaintiff made out a

claim after having been kept in administrative segregation.

Qualified immunity should be judged based on the actions of

the officer and the reasonably foreseeable consequences of

those actions, not subsequent events outside of the officer’s

control. The injury actually suffered goes to the merits of the

claim, the sufficiency of which to survive summary judgment

is a settled question in this case.

Particularly destructive to Bair’s claim that the type of

adverse action he took against Scott is determinative is Cale

v. Johnson, 861 F.2d 943, 948-51 (6th Cir. 1988). Cale,

which the Bell defendants relied upon, and which the Bell

court took pains to distinguish, held that an officer’s

unsuccessful attempt to frame a prisoner through the filing of

a false misconduct charge in retaliation for complaining about

prison food was itself action “shocking to the conscience.”

Although Bair acknowledges that Cale is “remotely on

point,” he argues that it is “easily distinguishable” because in

Cale, false evidence was planted on the prisoner, and in Cale,

the prisoner was taken to administrative segregation pending

his hearing. Appellant’s Br. at 19. Bair’s attempt to

distinguish Cale factually is unconvincing — after Hope v.

Pelzer, 536 U.S. 730, 741 (2002), the distinction between

attempting to frame an inmate for a misconduct charge by

planting evidence on his person and attempting to frame an

inmate by giving false testimony is one without a difference.

(“[O]fficials can still be on notice that their conduct violates

established law even in novel factual circumstances.”) Id. As

to Cale’s detention in administrative segregation, once again,

Bair’s argument goes to the harm Scott suffered, and thus to

the ultimate determination of the merits of his claim, and not
No. 03-2427 Scott v. Churchill, et al. 11

to whether Bair’s actions were unconstitutional in light of

clearly established law. In Cale itself, our focus was not on

the brief detention in administrative segregation which Cale

suffered, but instead upon the “danger of further loss of

liberty through disciplinary detention and through the loss of

good-time credit as a result of the charges filed against him.”

861 F.2d at 949-50; see also id. at 950-51 (in summation,

noting only that Cale “was subject to the possibility of

disciplinary sanctions and a resulting loss of liberty as a

consequence of the alleged actions,” and not adverting to

administrative segregation). Cale, decided in 1988, clearly

establishes that the mere potential threat of disciplinary

sanctions is sufficiently adverse action to support a claim of

retaliation. Even had the false misconduct charge been

sustained against Cale, however, that case would still clearly

establish that the false issuance of a misconduct charge is

unconstitutional retaliation; that Bair did not do a particularly

good job of framing Scott does not make his actions any less

culpable, and events outside of his control (i.e., the hearing

officer’s ultimate determination) do not vitiate the “the danger

of further loss of liberty” to which Bair subjected Scott. See

id. at 949.

Despite Cale’s clear applicability, Bair claims that Brown

v. Crowley, 312 F.3d 782 (6th Cir. 2002), was the first case

that would have given warning that his behavior was

unconstitutional, and Bair notes the vigorous dissent in that

case, arguing that as judges disagree on whether certain

behavior was unconstitutional, he cannot be expected to know

that such behavior was unlawful. The fatal flaw in this

argument, however, is that the Brown case did not contain any

of the specific evidence of retaliatory motive and deliberately

falsified charges that Scott presents in the instant case, a fact

noted even by the Brown dissent in distinguishing Cale. See

Brown, 312 F.3d at 799 (Rosen, J., dissenting) (distinguishing

Cale from Brown because Cale “feature[d] direct evidence of

retaliatory conduct” and of the prison official’s “active[]

abuse[ of] his position of authority” by manufacturing

evidence). Here, of course, Scott asserts, and Thomas

12 Scott v. Churchill, et al. No. 03-2427

provides independent verification, that Bair deliberately

framed Scott through false testimony, and that Bair did so

with the specific intent of deterring Scott from asserting his

First Amendment rights of grievance.

Under Gibbs and Newsom, which Bell directs this court to

look to, and under Cale as well, Scott’s right to be free from

retaliation, in the form of the issuance of a false major

misconduct ticket, against the exercise of his First

Amendment rights was clearly established, and Bair is not

entitled to qualified immunity.

E. Other Issues Raised By the Parties

Bair argues on the last full page of his brief that is he is

additionally entitled to qualified immunity on his conspiracy

claim, which he also seems to argue was dismissed by the

district court in an earlier stage of the litigation and never

reinstated by the circuit court. See Scott II, 2003 WL 77208,

at *1-*2 (noting civil conspiracy claim dismissed on basis

other than qualified immunity but reversing district court’s

decision without limitation); Scott v. Bair, No. 1:95 cv 571,

slip op. at 10-11 (W.D. Mich. Mar. 29, 2001), J.A. at 179,

188-89 (dismissing plaintiff’s conspiracy claim on grounds

other than qualified immunity). However, in denying

qualified immunity, the magistrate judge’s report and

recommendation indicated that the conspiracy claims would

proceed to trial. J.A. at 362. This report was adopted by the

district court without comment on the conspiracy claim. Scott

v. Churchill, No. 1:95 cv 571, slip op. at 2 (W.D. Mich. Oct.

3, 2003), J.A. at 466-67. Since Bair is not entitled to

qualified immunity on Scott’s First Amendment claim, it

stands to reason he is not entitled to qualified immunity on

Scott’s conspiracy claim. As to whether the district court

properly considered Scott’s conspiracy claim to be reinstated,

that issue is controlled by the mandate rule described above:

given that the Scott II court reversed the entire decision and

remanded to the district court for reconsideration, the district

court did not abuse its discretion in reconsidering Scott’s
No. 03-2427 Scott v. Churchill, et al. 13

conspiracy claim. If the initial reasons for dismissing the

conspiracy claim are not mitigated by the allowance of the

First Amendment claim, Bair is free to again move for

summary judgment on the merits of the conspiracy claim.

Finally, Scott claims that Bair’s appeal is frivolous and

vexatious, and he requests damages and costs because this

appeal presents the same issue as Scott II with no change in

the law or facts. This is, on its face, a difficult contention to

support. While Bell had been decided before Scott II was

argued, the Scott II court clearly wished to have the benefit of

the district court’s consideration of qualified immunity in

light of Bell before a definitive circuit court pronouncement

on the issue. The district court having considered qualified

immunity, Bair now appeals alleging legal error in that

consideration. While the legal issue may be the same in the

broader sense — qualified immunity — the district court’s

decision clearly breaks new ground from Scott II, and Bair is

entitled to appeal from that decision, especially in light of the

policy considerations underlying qualified immunity.

III. CONCLUSION

For the foregoing reasons, weAFFIRM the district court’s

judgment.