Rule 206 ELECTRONIC CITATION: 2004 FED App. 0235P (6th Cir.) File Name: 04a0235p.06… v. PATRICK CHURCHILL, Inspector, Carson City Regional Facility

*The Honorable B obb y R. B aldock, 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. Defendant-
Appellant 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.

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No. 03-2427 Scott v. Churchill, et al. 3
1There 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 inc ident 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 o f July 7, the conversation
itself could only have happened on July 6. G iven that Tho mas’s affidavit
was filed a year after the incident, it is reasonable to assume that this was
an insignificant erro r, rather than evid ence 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,

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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

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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 Thaddeus-
X 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

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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

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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

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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, we AFFIRM the district court’s
judgment.

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