United States District Court, D. Maine
ORDER ON DEFENDANT'S MOTION FOR SUMMARY
Torresen United States Chief District Judge
me is Defendant Dennis Shipman's motion for summary
judgment pursuant to Federal Rule of Civil Procedure 56. (ECF
No. 48). For the reasons stated below, the motion is GRANTED.
Renardo Williams is a prisoner incarcerated at the Maine
Correction Center (“MCC”) in Windham, Maine.
Dennis Shipman, one of the Defendants in this matter, is the
grievance review officer at MCC. This lawsuit arises out of
an incident that occurred when Williams was an inmate at the
Maine State Prison (“MSP”) in Warren, Maine.
Pl.'s Statement of Additional Facts ¶ 8
(“PSAF”) (ECF No. 50). Williams claims he was
assaulted by Defendant David Cutler,  an MSP captain, on December
24, 2012. See PSAF ¶¶ 8-9; Am. Compl.
¶ 16 (ECF No. 23). Williams later filed grievances with
the Maine Department of Corrections (“DOC”)
regarding the assault. PSAF ¶¶ 10-13. These
grievances were denied by the DOC. PSAF ¶¶ 11-13.
In January of 2013, Williams was moved from MSP to MCC. PSAF
¶ 14. In the Spring of 2013, Williams learned about a
secret “watch list” that the DOC used to monitor
trouble-prone inmates. PSAF ¶ 16. Inmates on the
“watch list” are subject to additional searches
and interference with their mail. PSAF ¶ 16. On April
16, 2013, Williams filed a grievance with Shipman to complain
about being placed on the “watch list.”
Def.'s Statement of Fact ¶ 2
(“DSF”) (ECF No. 49). On April
24, 2013, Shipmen sent Williams a memo advising that the DOC
would not tell him why he was placed on the “watch
list.” PSAF ¶ 18. Shipman also dismissed the
grievance as untimely because Williams was first affected by
the “watch list” more than 15 days before filing
his grievance. PSAF ¶ 18.
judgment is appropriate when there is no genuine dispute of
material fact and the moving party is entitled to judgment as
a matter of law. Fed.R.Civ.P. 56(a). “A dispute is
genuine if the evidence about the fact is such that a
reasonable jury could resolve the point in the favor of the
non-moving party.” Thompson v. Coca-Cola Co.,
522 F.3d 168, 175 (1st Cir. 2008) (citation omitted). A fact
is material if it can impact the outcome of the case.
Johnson v. Univ. of P.R., 714 F.3d 48, 52 (1st Cir.
2013). When considering a motion for summary judgment, courts
construe the record in the light most favorable to the
non-movant and resolve all reasonable inferences in the
non-movant's favor. Burns v. Johnson, 829 F.3d
1, 8 (1st Cir. 2016). But “[a] properly supported
motion for summary judgment cannot be defeated by relying
upon improbable inferences, conclusory allegations, or rank
speculation.” Rathbun v. Autozone, Inc., 361
F.3d 62, 66 (1st Cir. 2004).
Count Two of his Amended Complaint, Williams claims that
Shipman put him on the “watch list” at MCC in
retaliation for filing grievances against Cutler. Am. Compl.
¶¶ 37, 39. Williams also alleges that Shipman
denied his grievance as untimely in retaliation for filing
grievances against Cutler. Am. Compl. ¶¶ 35-36. In
evaluating Shipman's motion to dismiss, I concluded that
Williams engaged in protected conduct by filing grievances
regarding Cutler. Order on Defs.' Mot. to Dismiss 12 (ECF
No. 38). I also found that Williams plausibly alleged that he
suffered an adverse action because “being subjected to
increased searches and interference with mail might deter a
reasonably hearty inmate from exercising his constitutional
rights.” Order on Defs.' Mot. to Dismiss 13. But
now that discovery has ended, Williams concedes that he has
been unable to obtain evidence showing that Shipman was
involved in the decision to place him on the “watch
list.” Pl.'s Opp'n to Def.'s Mot. for Summ.
J. 1 (“Pl.'s Opp'n) (ECF No. 51). The question,
then, is whether Williams can sustain a First Amendment
retaliation claim based only on Shipman's denial of the
is well-settled that ‘retaliation against a
prisoner's exercise of constitutional rights is
actionable' under § 1983.” LeBaron v.
Spencer, 527 F. App'x 25, 32 (1st Cir. 2013)
(quoting Hannon v. Beard, 645 F.3d 45, 48 (1st Cir.
2011)). But “because prisoner claims of retaliation are
‘easily fabricated and pose a substantial risk of
unwarranted judicial intrusion into matters of general prison
administration, ' such claims must be based on facts, not
on ‘gossamer strands of speculation and surmise.'
” Id. (quoting Hannon, 645 F.3d at
48). To survive summary judgment on a First Amendment
retaliation claim, “a prisoner must make out a prima
facie case by adducing facts sufficient to show that he
engaged in a protected activity, that the state took an
adverse action against him, and that there is a causal link
between the former and the latter.” Hannon,
645 F.3d at 48.
adverse action must be “more than de minimis, ”
which means that “it ‘would chill or silence a
person of ordinary firmness from future First Amendment
activities.' ” Pope v. Bernard, No.
10-1443, 2011 WL 478055, at *2 (1st Cir. Feb. 10, 2011) (per
curiam) (quoting Morris v. Powell, 449 F.3d 682, 685
(5th Cir. 2006)). In analyzing whether an action was
sufficiently adverse, “the court's inquiry must be
tailored to the different circumstances in which retaliation
claims arise, bearing in mind that [p]risoners may be
required to tolerate more . . . than average citizens, before
a [retaliatory] action taken against them is considered
adverse.” Davis v. Goord, 320 F.3d 346, 353
(2d Cir. 2003) (citation omitted). “Adverse acts will
be considered de minimis when they ‘cause an inmate
only a few days of discomfort, impose a [single] minor
sanction, or impose an otherwise constitutional restriction
on the inmate. ” Horstkotte v. Comm'r, N.H.
Dep't of Corr., No. 08-285, 2010 WL 1416790, at *3
(D.N.H. Apr. 2, 2010) (quoting Starr v. Dube, 334 F.
App'x 341, 342 (1st Cir. 2009) (per curiam)). For
example, “the filing of a disciplinary charge carrying
potentially severe sanctions” that is later dismissed
after a hearing does not constitute an adverse action.
Starr, 334 F. App'x at 343. Neither do certain
verbal threats, Ellis v. Meade, 887 F.Supp. 324, 329
(D. Me. 1995), searching an inmate's cell, Pope,
2011 WL 478055, at *2, or denying access to a gym. Carter
v. Hillsborough Cty. Dep't of Corr., No. 13-275-JL,
2013 WL 6327993, at *2 (D.N.H. Dec. 5, 2013). But
transferring an inmate from a medium-security prison in one
state to a maximum-security prison in another may.
Hannon, 645 F.3d at 49. With these thoughts in mind,
I turn to Williams's retaliation claim.
is entitled to summary judgment because the purported adverse
act is de minimis. As Williams concedes, the record is devoid
of any evidence suggesting that Shipman participated in the
decision to place Williams on the “watch list.”
Accordingly, Shipman cannot be liable for the consequences
stemming from that decision. And there is no evidence
indicating that Shipman was involved with the grievances that
were denied at MSP. Shipman's role in this case is thus
limited to his denial of a single grievance at MCC. Based on
these facts, Williams's retaliation claim fails because
the denial of a single grievance is de minimis. In other words,
Shipman's denial of the grievance-standing alone-would
not deter an inmate of ordinary firmness from continuing to
exercise his First Amendment rights.
conclusion that the denial of a single grievance is de
minimis flows naturally from the case law within this
circuit. See Pope, 2011 WL 478055, at *2 (search of
inmates cell and seizure of property was de minimis);
Starr, 334 Fed. App'x at 342 (filing of a
later-dismissed disciplinary charge against inmate harboring
potentially severe sanctions was de minimis). And, outside of
this circuit, courts that have confronted the issue have held
that “[t]he denial of grievances is not an
‘adverse action' for retaliation purposes.”
Owens v. Coleman, 629 F. App'x 163, 167 (3d Cir.
2015) (pur curiam); see also Dicey v. Hanks, No.
2:14-2018-JAM/AC, 2015 WL 4879627, at *5 (E.D. Cal. Aug. 14,
2015) (“[T]he denial of a grievance neither constitutes
an adverse action that is more than de minimis nor is it
sufficient to deter an prisoner of ordinary firmness from
further First Amendment activities.”); Ross v.
Westchester Cty. Jail, No. 10-3937, 2012 WL 86467, at *8
(S.D.N.Y. Jan. 11, 2012) (“A refusal to file a single
grievance is not the kind o[f] retaliatory act which [would]
deter a prisoner of ‘ordinary firmness' ...