United States Court of Appeals

For the Eighth Circuit

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No. 12-1532

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Randy G. Spencer

lllllllllllllllllllll Plaintiff - Appellant

v.

Jackson County Missouri; Kenneth Conley

lllllllllllllllllllll Defendants

Carter; Williams; Anthony

lllllllllllllllllllll Defendants - Appellees

Nurse Jane Doe

lllllllllllllllllllll Defendant

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 Appeal from United States District Court 

for the Western District of Missouri - Kansas City

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 Submitted: September 26, 2013

 Filed: December 26, 2013 

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Before MURPHY, MELLOY, and SHEPHERD, Circuit Judges.

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MURPHY, Circuit Judge. 

Randy G. Spencer filed this action under 42 U.S.C. § 1983 against Jackson

County, Missouri and employees in its dete ntion center, alleging violation of his

constitutional rights by Margo Carter, the supervisor of the inmate worker program,

and case managers Gale Anthony and Brenda Williams. The district court granted the

defendants' motion for summary judgment. Spencer appeals the dismissal of his First

Amendment claims. After carefully reviewing the record, we reverse and remand. 

I. 

On this appeal from the grant of defendants' motion for summary judgment, we

view all facts in the light most favorable to plaintiff Randy Spencer. Spencer was

booked into the detention center in Janua ry 2005 on charges of tam pering with a

motor vehicle, assaulting a police officer, stealing over $750, and resisting arrest. 

Spencer's prior criminal record included a number of past charges of second degree

burglary, stealing over $150, and parole violation. He was described in his detention

center inmate worksheet as "[m]ature, cooperative, [and] non aggressive." 

Spencer was approved for the detention center's Inmate Worker Program (IWP),

also known as the "trustee program ," on February 14, 2005. Inmates in the trustee

program receive job assignments within the detention center and ar e paid for each

shift, with an opportunity to earn m ore for additional work. They also receive a

number of privileges and incentives. They are housed in a trustee m odule and are

eligible for late nights, weekend contact visitation rewards, and access to popcorn,

soda, and a movie player. One of Spencer's work assignments in 2005 was in the

kitchen; inmates assigned to the kitchen receive extra food and may have one meal per

work day in the break room area. 

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According to Spencer, he and h is program supervisor Margo Carter (then

Margo Hurse) had a good relationship during his 2005 stay in the IWP. After Spencer

participated in a question and answer session for a university criminal justice seminar,

Carter wrote him a letter on April 18 stating that she "sincerely want[ed] to thank"

Spencer for his participation in the IWP and wished him "luck in [his] future lifelong

endeavors." Spencer left the IWP in la te April 2005 to ente r a drug and alcohol

treatment program which he successfully completed in May. He then requested

reentry to the trustee program. His case manager, Marvin Walker, congratulated him

on his completion of the treatment program and wrote that he would "get [him] back

in the [trustee] program A.S.A.P." Spen cer was again approved f or the trustee

program and remained in it until he left the detention center in June 2005.1

Spencer filed a lawsuit ag ainst Carter and other employees of the detention

center in 2006, alleging that he had received inadequate medical and dental care there,

lack of response to his requests and grie vances, and retaliation by Carter. Spencer

asserts that Carter received notice of the action because he sent her "interrogatories,

requests for admissions and production of documents requests."

On October 17, 2009 Spencer returned to the detention center on a new charge

of stealing over $750. He was at this time 53 years old and aside from the new charge

his criminal record was the same as in 2005. He was again approved for the trustee

program. Then on October 28, Spencer spoke to Carter while she was investigating

an incident that occurred in the trustee module. Spencer claims that Carter recognized

his voice and face during this conversation, during which he told her he was sorry for

filing the lawsuit and expressed the hope he could stay in the trustee program. Carter

replied, "I don't know." Then, in "what seem[ed] like only a few seconds," Carter

came to tell him that he was being terminated from the program. Spencer was then

1

The record is not clear as to the reason for Spencer's transfer in June 2005, but

it was likely related to the disposition of the charges for which he was admitted to the

detention center in January 2005. 

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terminated and moved from the trustee module to H module, a housing area without

the special features of the trustee program. 

One day after being terminated from the trustee program Spencer submitted a

Request for Administrative Remedy form (known as a "JPO"), which is generally

required before filing a formal grievance, asking Carter to "reconsider [her] decision." 

He wrote that "you wouldn't have even known about it had I not said something and

I did that out of my heart because I was concerned if you were mad[] at me and that

was because I thought we were friends at one time." Carter responded that "due to

your past charges, behavior and actions you can not return to the I.W.P." 

Carter later asserted in an affidavit that she had removed Spencer from the IWP

"due to his penitentiary time, past behavior and actions in the [detention center]." She

stated that she had reviewed his criminal history "and learned that he had a prior

history involving stealing, tampering with a motor vehicle, assault on a police officer,

resisting arrest and burglary in the 2nd degree." Spencer filed another JPO on

November 4 stating that Carter had retali ated against him for filing a lawsuit by

removing him from the program. Although the JPO was addressed to the detention

center director, Carter signed the response which stated that "Lt. Carter was correct

by reviewing your files + case management notes to remove you from the program." 

Spencer submitted JPOs on Novem ber 9 and 10 to the inm ate services

administrator and to his H m odule case manager, Gale Anthony, requesting

information on exhausting the grievance procedure. Anthony responded to both JPOs,

writing "OK." Spencer sent another JPO on November 16, requesting a grievance

form "regarding Lt. Carter retaliating agains t me." He also stated that he had

previously written three JPOs on separate issues and had not received responses; he

again requested grievance forms. As Spencer's case manager, Anthony was required

under the center policy to give him a formal grievance form when requested. Anthony

responded that Spencer would have to fill out the JPOs again. Spencer sent a JPO to

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Anthony on November 17, again requesting four grievance forms. Anthony replied,

"[w]rite reasons why you want a grievance form." Spencer then filed three JPOs on

November 20 regarding his prior complaints, stating in each that Anthony had refused

to give him grievance form s. Alt hough the JPOs were a ddressed to various

individuals, Anthony responded to all three, writing in one response that she "didn't

refuse to give [Spencer] a grievance form" and that she told him to write to a different

department. 

Spencer filed a formal grievance form against Carter on November 23, stating

that she had retaliated against him and that Anthony "tried to deny me this grievance

for weeks." The next day Anthony entered "available cell" on a housing

reclassification form and Spencer was transferred to D m odule from H m odule. 

Spencer complains that "H Module is basically for older inmates like myself" while

D module houses "younger, aggressive inmates." Spencer reports that after he was

moved to D module, another prisoner told him that an inmate "had recently been beat

real bad in the module." On November 25 Spencer sent a JPO to Brenda Williams,

his new case manager in D module, asking for four grievance forms because he "went

through the JPO process at least twice with no satisfactory results." Williams replied

that Spencer's grievances were resolved and "you do not have to aggree [sic] to the

answers given you, but they are per policy and CM will not be issuing you another

grievance form." Spencer asserted that on November 30, Williams and a guard came

to D module and led him into the hall. While holding Sp encer's JPO, Williams

advised him that she and Anthony had moved him to D module and that he "wasn't

going to get any grievance forms."

Spencer filed this action in February 2011 under 42 U.S.C. § 1983. The district

court dismissed his claims against Jackson County, detention center director Kenneth

Conley, and unidentified nurse "Jane Doe." The sum mary judgment motion of

defendants Carter, Anthony, and Williams was later granted on Spencer's claims of

retaliation in violation of his First Amendment rights. Spencer appeals. 

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II.

Spencer argues that the district court erred in granting summary judgment on

his claims of retaliation in violation of his First Amendment rights. We review de

novo a grant of summary judgment, Sisneros v. Nix, 95 F.3d 749, 751 (8th Cir. 1996),

and affirm only if there is "no genuine dispute as to any material fact" and the moving

party is entitled to judgment as a matter of law, Fed. R. Civ. P. 56(a). We view "the

facts in the light m ost favorable to th e nonmoving party and giv[e] that party the

benefit of all reasonable inferences that can be drawn from the record." Marlowe v.

Fabian, 676 F.3d 743, 746 (8th Cir. 2012). 

In order to demonstrate retaliation in violation of the First Amendment under

42 U.S.C. § 1983, Spencer must "show (1) he engaged in a protected activity, (2) the

government official took adverse action against him that would chill a person of

ordinary firmness from continuing in the activity, and (3) the adverse action was

motivated at least in part by the exercise of the protected activity." Revels v. Vincenz,

382 F.3d 870, 876 (8th Cir. 2004) (citing Naucke v. City of Park Hills, 284 F.3d 923,

927–28 (8th Cir. 2002)). The retaliatory conduct itself need not be a constitutional

violation; the violation is acting in retaliation for "the exercise of a constitutionally

protected right." Cody v. Weber, 256 F.3d 764, 771 (8th Cir. 2001) (citing Madewell

v. Roberts, 909 F.2d 1203, 1206–07 (8th Cir. 1990)). The district court treated

Spencer's claims as being for retaliatory discipline, against which prison officials may

successfully defend by "showing 'some evidence' the inmate actually committed a rule

violation." Hartsfield v. Nichols, 511 F.3d 826, 829 (8th Cir. 2008) (citing Goff v.

Burton, 7 F.3d 734, 738–39 (8th Cir. 1993)). Spencer does not allege retaliatory

discipline, however, nor do defendants claim that Spencer violated any prison rules. 

The "some evidence" standard thus does not apply here. 

Spencer argues first that Carter retaliated against him for filing his lawsuit by

removing him from the trustee program. It is well established that the right to file a

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legal action is protected under the First Amendment. Goff, 7 F.3d at 736. Adverse

actions which may show retaliation include denial of privileges, Revels, 382 F.3d at

876, or acts worsening an inmate's working conditions, Lewis v. Jacks, 486 F.3d 1025,

1029 (8th Cir. 2007). The key question is whet her the actions were taken in retaliation

for engaging in protected activity. Spencer's removal from the trustee program could

potentially be found to be an adverse action resulting in his loss of access to income,

work opportunities, and housing advantages as well as other privileges.

In order to succeed on his claim, Spencer must show that an adverse action

taken against him was "motivated at least in part" by his protected activity of filing a

lawsuit against deten tion center employees. Revels , 382 F.3d at 876. Spencer' s

removal from the trustee program occurred almost immediately after he rem inded

Carter about his having filed a lawsuit against her. At that time Spencer had already

been approved to enter the trustee program three different tim es. He was first

approved when he initially arrived at the detention center in February 2005, again

when he reentered in May 2005 after completing a drug treatment program, and for

the third time in October 2009 when he entered on a new charge. The only change in

Spencer's record between 2005 and 2009 was his October 2009 charge of stealing over

$750, and Carter has not claimed that that was a disqualifying offense for participation

in the trustee program . Moreover, that charge had not prevented him from being

approved for entry into the trustee program in October 2009. 

Carter has not explained h ow Spencer became disqualified from the trustee

program when his record was essentially the same as when he entered it originally in

February 2005, except for the new charge which had not prevented him from being

readmitted in October 2009. Nor has she presented evidence that Spencer's record

changed between his October 2009 approval for the trustee program and his later

removal from that program. In a subsequent affidavit Carter claimed variously that

her decision had been based on Spencer's "extensive twenty five year history and prior

violent history in the penitentiary system" and that it was his "penitentiary time, past

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behavior and actions in the Jackson County Detention Center." She has however not

shown why Spencer's preexisting record did not disqualify him from being in the

trustee program in 2005 or provided specifics of any disqualifying "behavior and

actions." Viewing the facts in the light most favorable to Spencer, as we must on this

motion for summary judgment, we conclude that there is a genuine dispute of material

fact as to whether Carter's removal of Spencer from the trustee program in 2009 was

motivated by the lawsuit he had filed against her in 2006.

Spencer further argues that Anthony a nd Williams retaliated against him for

filing grievances by subsequently transferring him from the H housing module to the

D module on November 24. An inmate has a First Amendment right to use prison

grievance procedures, and it has been established in our circuit "for over twenty years"

that retaliatory actions for filing a pr ison grievance are actionable. Nelson v.

Shuffman, 603 F.3d 439, 449–50 (8th Cir. 2010). The module transfer here was an

adverse action because D module housed younger and more violent offenders than H

module according to Spencer's declaration. At the time of the transfer Spencer was

53 years old.

In addition to proving the other elements of retaliation, Spencer must prove that

he would not have been transferred "but for an unconstitutional, retaliatory motive." 

Goff, 7 F.3d at 738. Goff addressed transfers between prisons, and we have applied

the same standard to internal transf ers in a civil commitment case, Beaulieu v.

Ludeman, 690 F.3d 1017 (8th Cir. 2012). In Beaulieu, patients civilly committed in

the Minnesota Sex Offender Program alleged internal transfer in retaliation for

protected activity. 690 F.3d at 1024–27. An inmate at the Missouri Sexual Offender

Treatment Center was sim ilarly required to show in his retaliation case that his

internal transfer "was causally related to [his] protected expression." Nelson, 603 F.3d

at 450.

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We conclude that Spencer presented sufficient evidence to create a genuine

issue of material fact as to whether he would have been transferred from H module to

D module but for his use of the grievance process. Spencer was transferred the day

after filing his form al grievance against Carter, in which he had com plained that

Anthony was obstructing his efforts to obtain grievance forms. This timing is strong

evidence that he was transferred in retaliation, cf. Nelson, 603 F.3d at 450, and

defendants offered no nonreta liatory motive. The reclassification form signed by

Anthony stated only "available cell" without further direction. Moreover, Williams

told Spencer that she and Anthony had transferred him and that he would not receive

grievance forms. 

Spencer also argues that Anthony and Williams retaliated against him for his

attempts to file a grievance against Car ter by obstructing his access t o the process. 

Filing a prison grievance has long been "protected First Amendment activity," Lewis,

486 F.3d at 1029, as has been the right of "access to the grievance process," Nelson,

603 F.3d at 450. Such retaliatory conduct is actionable under § 1983. Id.; see also

Nei v. Dooley, 372 F.3d 1003, 1007 (8th Cir. 2004). Spencer' s attempts to seek a

remedy for his grievances through JPOs and to file formal grievances are precisely the

steps required by the detention center grievance policy for inmates to follow. He thus

was engaging in protected activity. 

Spencer presented evidence indicating that Anthony and Williams took adverse

action against him by obstructing his access to the grievance process, such as delaying

or refusing him requested forms. This evidence included Anthony' s directions to

Spencer to fill out additional JPOs and to "[w]rite reasons why you want a grievance

form" after he had requested a form multiple times. Anthony ultimately gave Spencer

only one formal grievance form even though he had requested four. This violated the

county's Formal Inmate Grievance Procedure which states that case managers will not

refuse to give inmates formal grievance forms even when the informal process has not

been exhausted. Spencer also presente d evidence that instead of furnishing the

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requested forms, Williams told him that all of his grievances had been resolved and

that she would not issue him another form. Spencer further asserts that Williams came

to his module accompanied by a guard and took him into the hallway to "intimidate"

him, telling him that he would not receive any more grievance forms. 

We conclude t hat Spencer presented a genuine issue of m aterial fact as to

whether the actions of Anthony and Williams were motivated at least in part by his

attempts to use the grievance procedure. Spencer presented evidence that Anthony

and Williams refused to give him grievance forms and were irritated by his use of the

grievance process. At one point for instance, Williams came in person accompanied

by a guard to tell Spencer that he would not receive more forms. Based on this record

we conclude there is a genuine issue of material fact as to whether Anthony and

Williams acted in retaliation for Spencer's efforts to file grievances. 

The district court also granted qualified immunity to the defendants, and our

review is de novo. Davis v. Hall, 375 F.3d 703, 711 (8th Cir. 2004). Public officials

are eligible for qualified immunity unless there are facts pled "showing (1) that the

official violated a statutory or constitutional right, and (2) that the right was 'clearly

established' at the time of the challenged conduct." Ashcroft v. al-Kidd, 131 S. Ct.

2074, 2080 (2011) (quoting Harlow v. Fitzgerald , 457 U.S. 800, 818 (1982)). The

right of an inmate to file a lawsuit is well established, Goff, 7 F.3d at 736, as is an

inmate's First Amendment right to access the prison grievance process, Nelson, 603

F.3d at 449–50. Since Spencer has raised genuine issues of material fact as to whether

defendants violated his First Amendment rights, the district court's grant of qualified

immunity to the defendants was premature and must be reversed.

III. 

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Accordingly, we reverse and remand for further proceedings consistent with

this opinion. 

SHEPHERD, Circuit Judge, dissenting in part.

I agree with the majority that the grant of summary judgment with respect to

appellees Williams and Anthony should be reversed. However, I would find that

appellee Margo Carter has carried her burden on sum mary judgment and would

therefore affirm the grant of sum mary judgment with respect to Spencer’s claim s

against her.

Carter has demonstrated that Spencer cannot establish an essential element of

his retaliation claim —namely that she took a sufficiently adverse action against

him—because Spencer was unqualified for the privileges he claims were denied to

him in violation of 42 U.S.C. § 1983. See Celotex Corp. v. Catrett, 477 U.S. 317,

322-23 (1986) (holding that the m oving party’s burden on a m otion for summary

judgment, in cases in which the ultim ate burden of persuasion at trial rests on the

nonmoving party, can be satisfied by demonstrating that the nonmoving party cannot

establish an essential element of its claim).

The majority focuses on the third elem ent of Spencer’s section 1983 claim

requiring a showing of retaliatory motive. However, it overlooks that Spencer must

ultimately prove the second element, that “the government official took adverse action

against him that would chill a person of ordinary firm ness from continuing in the

[protected] activity,” to be successful on his claim. Revels v. Vincenz, 382 F.3d 870,

876 (8th Cir. 2004). With respect to Carter, Spencer points to his removal from the

IWP as the adverse action. The denial of privileges may be an adverse action in some

cases, see Madewell v. Roberts, 909 F.2d 1203, 1204-06 (8th Cir. 1990); however, I

disagree that a denial of privileges for which a prisoner is unqualified is a sufficient

adverse action.

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In Revels, we found that the appellant did not present sufficient evidence of

adverse action, in part because he was not qualified for the privileges denied. 382

F.3d at 876-77. The appellant “adm itted he had not requested [the privileges]. He

also admitted he frequently [engaged in activity,] which would disqualify him for the

privileges he sought. Without evidence he requested or was qualified for such

privileges, his bare allegations do not show he suffered any adverse action.” Id.

(emphasis added).

In Madewell, on which Lewis v. Jacks, 486 F.3d 1025, 1029 (8th Cir. 2007)

relies, we held the denial of privileges to be an adverse action under the section 1983

analysis. 909 F.2d at 1025, 1027. Unlike the facts before us, there was no indication

in Madewell that the prisoners were unqualified for the privileges. Id. at 1026. In

fact, the opposite is true. There, the official attested that the plaintiffs had “as much

opportunity for [the privilege] as other inm ates.” Id. at 1025. Ultim ately, the

prisoner’s allegations of adverse action, in the form of the denial of privileges for

which they were qualified, was an adverse action to avoid summary judgment. Id. at

1026.

Viewing the facts in a light most favorable to Spencer, he is unable to establish

an essential element of his claim. As Carter asserts in her affidavit, supported by the

internal policy of the Jackson County Department of Corrections, Spencer’s criminal

history disqualified him from the IWP. The policy states that inm ates will be

disqualified if they “have been charged or convicted of . . . violent offenses.” Carter

presented uncontested evidence that Spencer’s criminal history includes both assault

on a police officer and resisting arrest. These offenses are violent. Therefore, Spencer

was not qualified to be in the IWP, a conclusion unaltered by the fact that Spencer was

initially admitted to the program.

Even if there is a disputed issue of material fact as to whether Car ter was

motivated by a desire to retaliate ag ainst Spencer, Carter’s action in rem oving him

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from the IWP was not sufficiently advers e because he was not qualified for the

privileges he sought. Accordingly, I woul d find that Carter has dem onstrated that

Spencer cannot establish an essential elem ent of his claim , and, therefore, I

respectfully dissent in part.

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