United States v. Wesley Running Shield

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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Nos. 09-3255/10-1664
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Ernest Cornelius Williams; *
Dorris Ellis Williams, *
*
Appellants, *
* Appeals from the United States
v. * District Court for the Eastern
* District of Missouri.
Judith Silvey, Correctional *
Officer I, Potosi Correctional Center; * [UNPUBLISHED]
Sarah Whitener, Correctional Officer *
II, Potosi Correctional Center; *
Unknown Menteer, Sergeant, *
Correctional Officer II, Potosi *
Correctional Center; Eric Dunn, *
CCW, Disciplinary Hearing *
Officer, Potosi Correctional Center; *
Kay Kline, Acting Functional Unit *
Manager, Potosi Correctional Center; *
Melody Haney, Functional Unit *
Manager/Acting Warden, Potosi *
Correctional Center; Cindy Griffith, *
AAW Potosi Correctional Center; Fred *
Johnson, Deputy Warden, Potosi *
Correctional Center; Don Roper, *
Warden, Potosi Correctional Center; *
Patricia Cornell, Deputy Division *
Director, *
*
Appellees. *

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Submitted: April 27, 2010
Filed: May 11, 2010
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Before MELLOY, BOWMAN, and SMITH, Circuit Judges.
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PER CURIAM.
In these consolidated appeals, Missouri inmate Ernest Cornelius Williams and
his wife Dorris Ellis (the Williamses) appeal the district court’s dismissal of their
complaint for failure to state a claim, the denial of their motion for a temporary
restraining order and preliminary injunction, and the denial of their post-judgment
motion to vacate an earlier order dismissing, prior to service of process, a number of
defendants. We grant the Williamses leave to appeal in forma pauperis in No. 10-
1664, and we affirm in part and reverse in part.
Initially, we conclude that the district court did not abuse its discretion in
denying the Williamses’ post-judgment motion under Federal Rule of Civil Procedure
60(b)(6) to vacate the preservice-dismissal order. See Hunter v. Underwood, 362 F.3d
468, 476 (8th Cir. 2004) (Rule 60(b)(6) motion cannot be used as substitute for timely
appeal). Further, we lack jurisdiction to review the denial of a temporary restraining
order, see Hamm v. Groose, 15 F.3d 110, 112-13 (8th Cir. 1994); and the district court
did not abuse its discretion in determining that the broad preliminary injunction sought
by the Williamses would be unduly burdensome on defendants in administering the
prison, see CDI Energy Servs. v. W. River Pumps, Inc., 567 F.3d 398, 401-02 (8th
Cir. 2009) (standard of review and relevant factors).

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As to the dismissal of the Williamses’ complaint for failure to state a claim,
which we review de novo, liberally construing the complaint, see Stone v. Harry, 364
F.3d 912, 914 (8th Cir. 2004) (pro se complaints are to be construed liberally); Burton
v. Richmond, 276 F.3d 973, 975 (8th Cir. 2002) (standard of review), we agree with
the district court that the Williamses included only conclusory allegations in support
of their equal protection claims, and we affirm the dismissal of those claims, see Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (plaintiff’s obligation to provide
grounds of entitlement to relief requires more than labels and conclusions).
However, we find that the district court erred in dismissing the retaliation
claims against Correctional Officers Judith Silvey and Sarah Whitener. Liberally
construed, the Williamses’ pleadings can be understood to allege that Silvey and
Whitener initiated false disciplinary proceedings against Ernest in retaliation for
Ernest and Dorris previously filing grievances and complaining to prison officials
about being mistreated in the visitation room. The complaint also alleged that Silvey
threatened to discontinue the Williamses’ visitation privileges if they continued to file
grievances and complain to the warden about their treatment in the visitation room,
and that she continuously harassed them during their visitation, or incited other
officers to do so, to retaliate against the Williamses for their complaints about the
visitation room. These allegations state an actionable retaliation claim. See Haynes
v. Stephenson, 588 F.3d 1152, 1155-56 (8th Cir. 2009) (prisoner must show he
exercised protected right and suffered discipline, and that exercise of protected right
was motivation for discipline; filing disciplinary charge is actionable under § 1983 if
done in retaliation for inmate filing grievance, because retaliatory disciplinary charge
strikes at heart of constitutional right to seek redress of grievances); Lewis v. Jacks,
486 F.3d 1025, 1028 (8th Cir. 2007) (alleged retaliatory action must be such that it
would chill person of ordinary firmness from engaging in protected activity); Burgess

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1We disagree with the district court that the Williamses cannot maintain a suit
against Silvey and Whitener in their official capacities, because the Williamses were
seeking injunctive relief. See Will v. Michigan Dep’t of State Police, 491 U.S. 58 71
n.10 (1989) (state official in his or her official capacity, when sued for injunctive
relief, is person under § 1983 because official-capacity actions for prospective relief
are not treated as actions against state).
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v. Moore, 39 F.3d 216, 218 (8th Cir. 1994) (threat of retaliation is sufficient injury if
made in retaliation for inmate’s use of prison grievance procedure). 1
Accordingly, we affirm the denial of the preliminary-injunction motion, the
denial of the post-judgment motion, and the dismissal of the equal protection claims.
We reverse the dismissal of the retaliation claims against Silvey and Whitener, and we
remand for further proceedings consistent with this opinion. On remand, we direct the
district court to consider the merits of the motions that were denied as moot: the
motions to file additional pleadings and for appointed counsel.
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