Shakur Muhammad, a/k/a JOHN E. MEASE v. Mark Close

*The Honorable T homas A. W iseman, Jr., United States District
Judge for the M iddle District o f Tennessee , sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0265P (6th Cir.)
File Name: 04a0265p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
SHAKUR MUHAMMAD, a/k/a
JOHN E. MEASE,
Plaintiff-Appellant,
v.
MARK CLOSE,
Defendant-Appellee.
X
-
-
-
->
,
-
-
-
-
N
No. 02-1043
On Remand from the
United States Supreme Court.
Decided and Filed: August 11, 2004
Before: MARTIN and MOORE, Circuit Judges;
WISEMAN, District Judge.*
_________________
OPINION
_________________
BOYCE F. MARTIN, JR., Circuit Judge. This case returns
to us on remand from the United States Supreme Court,
2 Muhammad v. Close No. 02-1043
which reversed our decision affirming an award of summary
judgment in favor of Mark Close, a corrections officer, on a
claim brought by Shakur Muhammad, an inmate, pursuant to
42 U.S.C. § 1983. Muhammad v. Close, 124 S. Ct. 1303
(2004). As explained below, we REVERSE the judgment of
the district court and REMAND for further proceedings.
I
Muhammad’s section 1983 claim alleges that while he was
incarcerated at the Standish Maximum Correctional Facility,
corrections officer Close violated his First Amendment rights
by charging him with threatening behavior, which
necessitates pre-hearing lockup, in retaliation for prior
lawsuits and grievance proceedings that Muhammad had
instituted against Close. The sole relief that Muhammad
seeks is $10,000 in compensatory and punitive damages “for
the physical, mental, and emotional injuries sustained” during
the six days of pre-hearing detention mandated by the charge
of threatening behavior.
In our initial decision, we relied upon Huey v. Stine,
230 F.3d 226 (6th Cir. 2000), in concluding that
Muhammad’s section 1983 claim was barred by the rule
announced in Heck v. Humphrey, 512 U.S. 477 (1994). The
Heck rule provides that “where success in a prisoner’s §1983
damages action would implicitly question the validity of
conviction or duration of sentence, the litigant must first
achieve favorable termination of his available state, or federal
habeas, opportunities to challenge the underlying conviction
or sentence.” Muhammad, 124 S. Ct. at 1304 (discussing
Heck). Subsequently, in Edwards v. Balisock, 520 U.S. 641
(1997), the Supreme Court applied the Heck rule “in the
circumstances of a §1983 action claiming damages and
equitable relief for a procedural defect in a prison’s
administrative process, where the administrative action taken
against the plaintiff could affect credits toward release based
on good-time served.” Muhammad, 124 S. Ct. at 1304
(discussing Edwards). In Huey, a panel of this Court stated

-- 1 of 4 --

No. 02-1043 Muhammad v. Close 3
that “the Heck/Edwards doctrine [applies] generally to
prevent a prisoner found guilty in a prison disciplinary
hearing from using §1983 to collaterally attack the hearing’s
validity.” 230 F.3d at 228-29 (adopting the reasoning of
several unpublished opinions from our circuit). In this case,
our conclusion that Heck barred Muhammad’s section 1983
claim flowed directly from Huey, which we were bound to
follow.
In reversing our decision, however, the Supreme Court
ruled that the “precedent” upon which we had relied – i.e.,
Huey – was wrongly decided. Muhammad, 124 S. Ct. at
1306. According to the Court, the “view expressed” in Huey
“that Heck applies categorically to all suits challenging prison
disciplinary proceedings” is “mistaken[.]” Muhammad, 124
S. Ct. at 1306. The Court clarified that “the incarceration that
matters under Heck is the incarceration ordered by the
original judgment of conviction, not special disciplinary
confinement for infraction of prison rules.” Id. at 1304, n.1.
It then reasoned that because determinations made in prison
disciplinary proceedings “do not as such raise any implication
about the validity of the underlying conviction, and although
they may affect the duration of time to be served (by bearing
on the award or revocation of good-time credits) that is not
necessarily so.” Id. at 1306. Because in this case “no good-
time credits were eliminated by the prehearing action
Muhammad called into question,” the Court held that
“[Muhammad’s] §1983 suit challenging this action could not
therefore be construed as seeking a judgment at odds with his
conviction or with the State’s calculation of time to be served
in accordance with the underlying sentence.” Id. Having
overruled the portion of Huey upon which our previous
decision relied, the Court reversed our decision finding that
Muhammad’s section 1983 claim was barred by Heck, and
remanded this case for our “consideration of summary
judgment on the ground adopted by the District Court.” Id.
at 1307.
4 Muhammad v. Close No. 02-1043
II
In considering the district court’s award of summary
judgment, we employ de novo review. Graham ex rel. Estate
of Graham v. Cty. of Washtenaw, 358 F.3d 377, 382 (6th Cir.
2004). In prior rulings in this case, the district court held that
Muhammad had properly pleaded all the elements of a First
Amendment retaliation claim, which are:
(1) the plaintiff engaged in protected conduct; (2) an
adverse action was taken against the plaintiff that would
deter a person of ordinary firmness from continuing to
engage in that conduct; and (3) there is a causal
connection between elements one and two--that is, the
adverse action was motivated at least in part by the
plaintiff's protected conduct.
Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999).
Close conceded that the first element was satisfied,
inasmuch as Muhammad has a right to access the courts.
Close argued, however, that he was entitled to summary
judgment because there was insufficient evidence to satisfy
the second and third elements. Where a defendant shows a
lack of evidence on any particular element of the claim at
issue, the plaintiff has the burden of offering affirmative
evidence from which a reasonable fact finder could find in his
favor. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 586-87 (1986). Such evidence is
required to be viewed in the light most favorable to the
plaintiff. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-
52 (1986). Thus, any direct evidence offered by the plaintiff
in response to a summary judgment motion must be accepted
as true. Adams v. Metiva, 31 F.3d 375, 382 (6th Cir. 1994).
The magistrate recommended that Close’s motion for
summary judgment be granted, and the district court agreed.
The district court’s decision was based solely upon its
determination that Muhammad had failed to produce

-- 2 of 4 --

No. 02-1043 Muhammad v. Close 5
sufficient evidence to satisfy the third element, causation.
The court held that the temporal proximity between the
protected conduct and the alleged adverse action was weak
and that there was no “direct evidence of animosity, such as
statements made by the defendant, that the Court would be
required to take as true.” In the district court’s view,
Muhammad was simply “ask[ing] [the court] to trust his
hunch that the defendant’s adverse action against him was
motivated by his past lawsuits,” which is “insufficient to
defeat a summary judgment motion . . . .”
As Muhammad maintains, however, in reaching its
conclusion, the district court overlooked a key piece of
evidence relating to causation: a type-written affidavit from
inmate Bruce Coxton. The Coxton affidavit states as follows:
I, BRUCE COXTON, being first duly sworn deposes and
says that the following statements are true and correct to
the best of my knowledge, information, and beleif [sic]:
1.) In or around May 1997, I did hear two correction
officers having a discussion about prisoner Mease-X
[the plaintiff in this case] and they were clearly
conspiring to cause him harm.
2.) I directly saw and heard officers M. Close and M.
Glowicki standing approximately 3 feet from my
cell door talking about how they were going to “get
Mease-X ass.”
3.) I directly observed Close and Glowicki talking about
how they had to “stop him from filing that appeal
and get his ass out of here.” Glowicki responded to
Close that “I should have killed the nigger when I
had the chance.”
4.) I directly watched and overheard Close telling
Glowicki how to set Mease-X up by placing a knife
6 Muhammad v. Close No. 02-1043
in his cell and than [sic] rush him and act like he
accidentally got killed while trying to resist him.
5.) I wrote a kite to the unit case manager Wendy Reetz
and told her what I had seen and heard regarding the
officers [sic] threat to kill Mease-X.
6.) Case manager Reetz came to my cell and told me
that if I did not minded [sic] my own business, I
would be getting the same treatment.
7.) Subsequently, when I tried to access the Court of
Appeals with my criminal case, Reetz withheld my
pleadings beyond the time for which relief could be
sought and denied me access to postage stating . . .
that I should have minded my own business.
8.) I was also retaliated against for reporting this matter
to Reetz and this could have seriously harmed
Mease-X, maybe even his death as Close and
Glowicki threatened.
9.) I attest that the foregoing is true and correct to the
best of my knowledge, and make these statements
under penalty of perjury.
The affidavit is signed and dated October 2, 2001. It was
filed with the district court as an exhibit attached to
Muhammad’s objections to the magistrate’s report and
recommendation, which he prepared and submitted without
the benefit of counsel.
We agree with Muhammad that the Coxton affidavit
appears to be precisely the type of evidence of causation that
the district court thought was lacking. Even if not
determinative of the issue, this affidavit is, at the very least,
a significant piece of evidence that – along with the other
evidence in this case – must be examined in connection with

-- 3 of 4 --

No. 02-1043 Muhammad v. Close 7
the causation analysis. Thus, we remand this case to the
district court for further proceedings.
Close attempts to downplay the significance of the Coxton
affidavit by arguing that: (1) the affidavit is not notarized; and
(2) although dated prior to the date of the magistrate’s report,
it was not presented to the magistrate because it was filed as
an exhibit to Muhammad’s objections to the magistrate’s
report. Because the Coxton affidavit was completely ignored
in the district court proceedings, this is the first time that
Close has presented these arguments to any court. We decline
to address these issues in the first instance. Close is free to
advance these, and other, arguments in the district court on
remand.
Additionally, Muhammad argues that the district court
erred in rejecting his argument that temporal proximity
between the protected conduct and the retaliatory action
existed in this case, sufficient to prove causation, because he
was away from the Standish Maximum Correctional Facility
for much of the time between the filing of the second lawsuit
and the incident in question. While we need not resolve this
issue on appeal, given our reliance on the Coxton affidavit,
we note that temporal proximity alone may be “significant
enough to constitute indirect evidence of a causal connection
so as to create an inference of retaliatory motive.” DiCarlo v.
Potter, 358 F.3d 408, 422 (6th Cir. 2004).
Therefore, the district court should, on remand, determine
whether the Coxton affidavit alone, Muhammad’s proof of
temporal proximity alone, or both pieces of evidence together
are sufficient to defeat Close’s motion for summary
judgment.
For these reasons, the district court’s judgment is
REVERSED and the case is REMANDED to the district
court for further proceedings consistent with this opinion.

-- 4 of 4 --