Issac Lydell Herron v. Jimmy Harrison

*The Honorable James G. Carr, United States District Judge for the
Northern District of Ohio, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0054P (6th Cir.)
File Name: 00a0054p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
ISSAC LYDELL HERRON ,
Plaintiff-Appellant,
v.
J IMMY HARRISON , et al.,
Defendants-Appellees.
;>

1
No. 98-5726
Appeal from the United States District Court
for the Western District of Tennessee at Memphis.
No. 96-03051—J. Daniel Breen, Magistrate Judge.
Submitted: December 7, 1999
Decided and Filed: February 14, 2000
Before: COLE and GILMAN, Circuit Judges; CARR,
District Judge.*

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2 Herron v. Harrison, et al. No. 98-5726
_________________
COUNSEL
ON BRIEF: Pamela S. Lorch, OFFICE OF THE
ATTORNEY GENERAL, CIVIL RIGHTS & CLAIMS
DIVISION, 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 complaint
against various officials of the Cold Creek Correctional
Facility and the Tennessee Department of Corrections
(collectively, CCCF officials) pursuant to 42 U.S.C. §§ 1983,
1985, and 1986. Herron alleges that those officials violated
his civil rights both directly, by burdening the exercise of his
constitutional rights, and indirectly, by retaliating against him
for exercising those rights. The magistrate judge to whom the
case was transferred dismissed Herron’s complaint for failure
to state a claim upon which relief may be granted, finding that
the majority of Herron’s claims did not allege sufficient facts
to constitute unlawful retaliation and the remainder of his
claims were barred by issue preclusion due to prior suits that
Herron had brought.
On March 8, 1999, several months after the briefs in this
appeal were filed, this court issued its en banc decision in
Thaddeus-X v. Blatter, 175 F.3d 378 (6th Cir. 1999), which
clarified the burden borne by a prisoner alleging retaliation
claims. Under the Thaddeus-X standard, one of Herron’s
allegations of retaliation potentially states a claim upon which
relief may be granted. We therefore AFFIRM in part,
REVERSE in part, and REMAND for further proceedings
consistent with this opinion.
No. 98-5726 Herron v. Harrison, et al. 11
he asserts that “[t]he acts and practices of the defendants
described in . . . this complaint violates [sic] plaintiff’s
Fourteenth Amendment right against discrimination based on
religion.” He has not, however, alleged specific incidents of
religious discrimination outside of the claims already
considered and dismissed in Herron v. Bradley. These claims
may not be raised again. See Montana v. United States, 440
U.S. 147, 153 (1979) (“Under res judicata, a final judgment
on the merits bars further claims by parties or their privies
based on the same cause of action.” (citations omitted)).
III. CONCLUSION
For all of the reasons set forth above, we REVERSE the
magistrate judge’s order of dismissal as to the retaliation
claim found in Herron’s first supplemental complaint and
REMAND for further proceedings consistent with this
opinion. We AFFIRM the dismissal of the remainder of
Herron’s claims.

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10 Herron v. Harrison, et al. No. 98-5726
authority.” Under the proper standard expressed in Thaddeus-
X, however, this court has found that placing an inmate in
administrative segregation “could deter a person of ordinary
firmness 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 for
providing legal aid would be constitutionally impermissible).
With the exception of demonstrating that his assistance was
needed by Muhammad, then, Herron has made out a prima
facie claim of First Amendment retaliation under Thaddeus-X.
He alleged that he engaged in protected conduct (legal
assistance), that he was subsequently disciplined to a degree
that might deter an ordinary person from such conduct, and
that the two incidents were causally linked. Should Herron
produce evidence showing that the inmate he assisted
required that assistance, he will have established all three
elements of a prima facie claim of unconstitutional retaliation.
We therefore reverse the magistrate judge’s dismissal of the
retaliation claim alleged in Herron’s first amended complaint
and remand to allow Herron to amend his complaint if he so
chooses.
C. Herron’s equal protection claim
The magistrate judge properly dismissed Herron’s equal
protection claim, which was raised in both his original and
supplemental complaints. An equal protection claim must
assert 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 intentionally
discriminated against the plaintiff because of membership in
a protected class” (citation and internal quotation marks
omitted)). In his original and first supplemental complaints,
Herron invokes the Equal Protection Clause without
identifying the protected class to which he belongs. Herron
is more specific in his second supplemental complaint, where
No. 98-5726 Herron v. Harrison, et al. 3
I. BACKGROUND
Herron brought two earlier lawsuits against the prison staff
at CCCF before initiating this suit. In May of 1994, he filed
an action titled Herron v. Bradley, alleging violations of the
Religious Freedom Restoration Act (RFRA), 42 U.S.C.
§ 2000bb, and his First Amendment rights to the free exercise
of religion. In that case, Herron charged CCCF officials with
purposely interfering with his observance of religious feasts
and services as a member of the Church of God. He also
charged prison officials with violating his rights by
terminating the visitation privileges of Marvin Brunken, a
religious volunteer who had led Church of God services at the
prison.
At an evidentiary hearing in the Bradley case, Herron
alleged that prison officials were then in the process of
transferring him to another institution in retaliation for his
attempts to seek legal redress against them. In an order dated
March 28, 1997, the district court granted Herron’s motion
to temporarily enjoin CCCF officials from transferring him to
another facility. The district court concluded that RFRA
provided Herron with a valid First Amendment claim and that
CCCF officials were therefore not permitted to retaliate
against Herron for asserting that claim. After the Supreme
Court issued its opinion in City of Boerne v. Flores, 521 U.S.
507 (1997), overruling RFRA and thus eliminating the legal
grounds for Herron’s complaint, the district court vacated the
preliminary injunction and dismissed Herron’s entire suit.
In his second case, Herron v. Campbell, filed in November
of 1995, Herron alleged unconstitutional interference with the
fund-raising activities of the Church of God at Cold Creek
(CGCC), a church that Herron had incorporated. That case
was dismissed in January of 1997 on the grounds that Herron
had no standing to raise the corporation’s rights and, as a non-
lawyer, had no right to argue on its behalf.
In the present case, filed in October of 1996, Herron
charges CCCF officials with a series of civil rights violations,
some of which are new and others of which were raised in

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4 Herron v. Harrison, et al. No. 98-5726
Herron’s prior lawsuits. First, in his original complaint,
Herron charges defendants with unconstitutional retaliation
against the exercise of his First Amendment right to seek
legal redress. Herron relates that he has filed several
grievances on his own behalf, as well as on behalf of a group
of Muslim inmates. In retaliation, he alleges that prison
officials interfered with his religious services, denied his
request to conduct business on behalf of CGCC, suspended
his wife’s visitation privileges, terminated him from his
prison job, and ordered him transferred to the South Central
Correctional Center (SCCC). (Herron was not, in fact,
transferred to SCCC, although he was subsequently
transferred to Turney Center Industrial Prison—a move that
he does not challenge in this case).
In his first supplement to the pending complaint, Herron
charges three CCCF officials with taking further retaliatory
actions against him for appearing before the institutional
grievance board on behalf of a fellow inmate, Abu Bakar
Muhammad. Two days after his appearance, Herron alleges
that defendant Tuggle approached Herron while Herron was
visiting with his wife and instructed him to put his feet under
the table. Herron and Tuggle then entered into a dispute over
the validity of this rule. Herron was later charged with and
convicted of creating a disturbance, and sentenced to five
days of punitive segregation, thirty days’ loss of visitation
privileges, two months’ loss of package privileges, and an
infraction fine of three dollars. Herron claims that the
disciplinary action was taken in retaliation for his having
asserted his First Amendment rights to file grievances and to
provide legal assistance to another inmate. He also alleges
several violations of his due process rights in the conduct of
his disciplinary proceeding and sentencing.
Finally, in his second supplement to the pending complaint,
Herron alleges that his right to privacy was violated when
prison officials requested an additional copy of the charter
and bylaws of CGCC. When Herron declined this request,
CCCF officials allegedly retaliated against him by firing
Brunken from his position as a religious volunteer. Herron
No. 98-5726 Herron v. Harrison, et al. 9
own First Amendment rights. The question, then, is whether
Herron’s failure to allege that Muhammad required his
assistance warrants dismissal of his claim at this stage. As
stated above, a pro se plaintiff’s complaint should only be
dismissed under Rule 12(b)(6) if it is clear that relief would
not be appropriate under any set of facts that could be proved.
See Estelle, 429 U.S. at 106. Such is not the case here.
The case of Gibbs v. Hopkins, 10 F.3d 378 (6th Cir. 1993),
is directly on point. In that case, an inmate alleged that prison
officials retaliated against him for providing legal assistance
to other inmates. Like Herron, the plaintiff in Gibbs
neglected to allege that his services were vital to the other
inmates’ right of access to the courts. The trial court granted
summary judgment to the defendants based on this omission.
On appeal, this court reversed and remanded, stating that
“[w]e . . . believe that Gibbs should be allowed to amend his
complaint to properly allege a constitutional claim of denial
of access to the courts, including an allegation that there are
no reasonable alternatives which ensure access to the courts
for the prisoners at the Chippewa Correctional Facility.” Id.
at 379. Given the fact that Rule 56 imposes a more
demanding burden on a plaintiff than Rule 12(b)(6), it would
be incongruous to dismiss Herron’s retaliation claim in view
of Gibbs’s reversal of summary judgment when considering
the same omission.
As an alternative ground for its holding, the magistrate
judge also concluded that none of the disciplinary actions that
Herron alleges in his first supplemental complaint rise to the
level of impermissible retaliation. The magistrate judge drew
upon pre-Thaddeus-X precedents in so holding, and
mistakenly applied the general retaliatory standard to claims
that allege retaliation against Herron’s exercise of First
Amendment rights. Thus, regarding Herron’s most serious
allegation that he was sentenced to five days of administrative
segregation in retaliation for assisting Muhammad, the
magistrate judge found that “a prison disciplinary conviction
and confinement to segregation for creating a disturbance
neither shocks the conscience nor egregiously abuses

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8 Herron v. Harrison, et al. No. 98-5726
dismissed Herron’s entire complaint as frivolous in an order
dated 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 for
interference with his First Amendment rights, he has no claim
for retaliation . . . .” Herron therefore may not now allege
specific retaliation by prison officials against him for pursuing
the free exercise claims that were dismissed as frivolous in
Bradley. To the extent that Herron is alleging a general claim
of retaliation, the retaliatory acts alleged by Herron in this
complaint, such as the suspension of his wife’s visitation
privileges and a threatened transfer to another facility, fall far
short of the “shock the conscience” test.
2. Herron’s right to provide legal assistance to others
Herron’s other retaliation claim, contained in his first
supplemental complaint, alleges that CCCF officials
impermissibly disciplined him for assisting Abu Bakar
Muhammad in arguing a grievance before the prison board.
The magistrate judge dismissed this claim, recognizing the
principle that an inmate does not generally have an
independent right to help other prisoners with their legal
claims. See Thaddeus-X, 175 F.3d at 395. Such assistance is
protected, however, when the inmate receiving the assistance
would otherwise be unable to pursue legal redress.
Assistance is then protected as a derivative of the
complainant’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 the
complainant had no knowledge of the law, was being held in
administrative segregation, and could only access legal books
by requesting them by title.
Herron does not assert in his complaint that Muhammad
would have been unable to obtain access to the courts without
him. Indeed, it appears that Herron is unaware of this
requirement, because his brief erroneously asserts that his
legal work on behalf of other inmates is protected by Herron’s
No. 98-5726 Herron v. Harrison, et al. 5
claims that his First Amendment rights to the free exercise of
religion were thereby infringed because, without Brunken, he
was unable to observe the Feast of Pentecost in the proper
manner, congregate for Sabbath evening services, conduct
acts of charity, or produce his church newsletter. In depriving
him of the opportunity to associate with Brunken, Herron also
maintains that prison officials violated his freedom to
associate and his right to privacy. Furthermore, Herron
claims that he was singled out for differential treatment on the
basis of his religious affiliation, in violation of the Equal
Protection Clause of the Fourteenth Amendment. Herron’s
original and supplemental complaints also charge CCCF
officials with parallel violations of the Tennessee constitution.
On October 21, 1997, the defendants moved to dismiss all
of Herron’s complaints for failure to state a claim upon which
relief may be granted. By order dated April 16, 1998, the
magistrate judge to whom the case had been transferred by
consent of the parties granted Herron’s motion to file his
second supplemental complaint, but contemporaneously
granted the prison officials’ motion to dismiss all of Herron’s
claims pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure. Herron filed a timely notice of appeal on April 29,
1998.
II. ANALYSIS
A. Standard of review
We review a trial court’s decision to grant a motion to
dismiss de novo. See Weiner v. Klais & Co., 108 F.3d 86, 88
(6th Cir.1997). When considering a motion to dismiss
pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure, the trial court must accept all of the allegations in
the complaint as true, and construe the complaint liberally in
favor of the plaintiff. See Miller v. Currie, 50 F.3d 373, 377
(6th Cir.1995). A pro se plaintiff’s complaint is held to an
especially liberal standard, and should only be dismissed for
failure to state a claim if it appears “beyond doubt that the
plaintiff can prove no set of facts in support of his claim

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6 Herron v. Harrison, et al. No. 98-5726
which would entitle him to relief.” Estelle v. Gamble, 429
U.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 exercising
his First Amendment right to file grievances and petition the
courts for redress. In March of 1999, eight months after
Herron had filed his appeal in this case, an en banc panel of
this court decided Thaddeus-X v. Blatter, 175 F.3d 378 (6th
Cir. 1999). Thaddeus-X clarified the law governing prisoner
retaliation claims where the retaliation is alleged to have been
directed at an inmate’s efforts to litigate on behalf of himself
or others. As the most recent, on-point decision of this court,
Thaddeus-X is controlling, despite the fact that Herron did not
bring 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 individual
was retaliated against for the exercise of specific
constitutional rights. Thaddeus-X clarifies the elements of
each category and supplants previous cases that had blurred
the lines between the two. General claims of retaliation are
brought under the Due Process Clause of the Fourteenth
Amendment. To state a successful case of general retaliation,
a prisoner must establish “an egregious abuse of
governmental power” or behavior that “shocks the
conscience.” See id. at 387. In the great majority of cases,
inmates are unable to survive summary judgment under this
demanding standard. The rare exceptions have been in cases
where, for example, a prison official issued death threats
against an inmate with a cocked pistol at his head, or where
prison officials trumped up false disciplinary charges against
an inmate and then proceeded to physically abuse him and
levy 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 the
exercise of a specific constitutional right. In such cases, an
No. 98-5726 Herron v. Harrison, et al. 7
inmate bears a lesser burden, and is only required to establish
the following three elements: (1) the inmate engaged in
protected conduct, (2) an adverse action was taken that would
deter a person of ordinary firmness from continuing to engage
in that conduct, and (3) the adverse action was motivated, at
least in part, by the inmate’s protected conduct. See
Thaddeus-X, 175 F.3d at 394.
1. Herron’s right to pursue his own grievances
An inmate has an undisputed First Amendment right to file
grievances against prison officials on his own behalf. See
Noble v. Schmitt, 87 F.3d 157, 162 (6th Cir. 1996). This right
is protected, however, only if the grievances are not frivolous.
See Lewis v. Casey, 518 U.S. 343, 353 (1996) (“Depriving
someone of a frivolous claim . . . deprives him of nothing at
all, except perhaps the punishment of Federal Rule of Civil
Procedure 11 sanctions.”). Thus Herron’s pursuit of legal
claims against CCCF officials in the instant case and in
previous cases was protected conduct only to the extent that
the underlying claims had merit.
Herron’s only claim of retaliation for the exercise of his
own right of access to the courts is advanced in his original
complaint. In that complaint, he describes a series of adverse
actions that CCCF officials allegedly took in response to his
filing a lawsuit in Herron v. Bradley, a suit that charged
prison officials with violating his First Amendment right to
the free exercise of religion. Herron specifically claims that
CCCF officials suspended his wife’s visitation privileges,
terminated his job, and ordered him transferred to the SCCC,
all in retaliation for his filing a legal complaint.
The underlying free exercise claims that allegedly sparked
these incidents of retaliation were presented in Bradley.
Indeed, concerned by Herron’s allegations that prison officials
might retaliate against Herron for filing the Bradley suit, the
district court issued a preliminary injunction to prevent CCCF
officials from transferring Herron to another facility while the
case was pending. Ultimately, though, the district court

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