Cleveland BROWN, Plaintiff-Appellant, v. Michael J. CROWLEY, et al., Defendants-Appellees, 312 F.3d 782

GILMAN, J., delivered the opinion of the court, in which MOORE, J., joined. ROSEN, D.J., (pp. 792-808), delivered a separate dissenting opinion. OPINION GILMAN, Circuit Judge. After Cleveland Brown, a Michigan prisoner, was transferred from one prison to another, he was informed that he owed a balance on his personal account with the former prison. Funds were then removed from Brown’s prison trust account to cover the debt. Yet when Brown was subsequently transferred to other Michigan prisons in later years, he continued to receive notices regarding the same debt.

Brown attempted to rectify the situation by filing grievances each time he received a notice, but his efforts were unsuccessful. He finally wrote a Michigan State Police official to request that criminal charges be brought against various prison officials for embezzlement of his funds. His request was referred to the Internal Affairs Department of the Michigan Department of Corrections (MDOC), which decided that his complaint was meritless. Brown was subsequently issued a major misconduct charge for filing a false complaint. He was later acquitted of the charge by a hearing officer.

In June of 1998, Brown filed suit against a number of MDOC officials pursuant to 42 U.S.C. § 1983. Brown claimed that the defendants violated his constitutional rights under the Equal Protection Clause, the Due Process Clause, the First Amendment, and the Eighth Amendment. The district court dismissed several of Brown’s claims sua sponte, and the defendants were later granted

summary judgment on the remaining claims. This court, in a prior appeal, vacated the district court’s dismissal of Brown’s retaliation claim and remanded for further proceedings. On remand, the district court granted the defendants’ motion for

summary judgment on the retaliation claim. For the reasons set forth below, we VACATE the judgment of the district court and REMAND the case once again for further proceedings consistent with this opinion. I. BACKGROUND A. Factual background In February of 1995, Brown was transferred from Ryan Correctional Facility (Ryan) to the Marquette Branch Prison (Marquette). Brown was later informed that Ryan had sent a notice to Marquette stating that he owed $51.24. After concluding that Brown did in fact owe the $51.24, Marquette Business Office Secretary Susan Bianchi requested Marquette Accountant S.

Laine to deduct that amount from Brown’s prison trust account. Bian-chi subsequently told Brown that the debt had been paid. Brown was later charged an additional $18.00 for a debt that he allegedly owed to Southern Michigan Prison. He contends, however, that this amount had already been included in the $51.24 that was paid to Ryan. When Brown questioned the debt, Bianchi informed him that the $18.00 debt was part of a different transaction. After Brown’s attempts to obtain records pertaining to his Ryan debt were unsuccessful, he filed a grievance.

Brown’s grievance was answered by the grievance coordinator at Ryan, Cindy Thorton. Thorton stated that, of the $51.24 paid to Ryan, $4.91 was for an indigent loan, and the remaining $46.33 was the amount that had been overdrawn from Brown’s prison account. Brown was subsequently transferred from Marquette to Standish Maximum Correctional Facility (Standish). When Brown received a second notice regarding the $18.00 debt, he filed a grievance requesting an itemized statement of the amount owed.

At Standish, Brown also continued to receive notices that he owed the $51.24 debt that had been paid while he was imprisoned at Marquette. Brown was then transferred once again, this time from Standish to Baraga Maximum Correctional Facility (Baraga). After he was transferred, the Baraga accounting office informed Brown that Ryan was still claiming that he owed $51.24. In January of 1998, Brown filed still another grievance and wrote to Baraga Case Manager Daniel Lesatz regarding the situation. A few days later he wrote a second letter to Lesatz.

He also wrote contemporaneous letters regarding the matter to Baraga Accountant Toni Joki and Baraga Warden Michael Crowley. Two days later, he sent copies of the pertinent records to Baraga Resident Unit Manager William Leutzow to try to resolve the matter. Leutzow, however, returned these documents to Brown and told him that he should contact Ryan directly. Lesatz later denied Brown’s January 1998 grievance on the basis that it was duplicative of grievances that Brown had filed in 1996 and 1997.

This caused Brown to send a Step II grievance appeal to Baraga Warden Crowley, contending that his grievance was not redundant because a duplicate deduction had been made from his prison account. After the matter was investigated, Crowley told Brown that the $51.24 debt had been reduced to $6.16, and that the matter would be resolved when that amount was paid. Although Brown requested copies of the investigation reports, he never received a response. Brown then sent a Step III grievance appeal to MDOC Director Kenneth McGin-nis, but his appeal was denied.

At this point, Brown wrote Michigan State Police Lieutenant Colonel Alan K. Anderson to request that criminal charges be brought against the above-mentioned prison officials for embezzlement of his funds. Anderson submitted the matter to the Internal Affairs Department of the MDOC. Brown subsequently received a letter from MDOC Internal Affairs Manager Jack L. Hall, stating that his complaint had been investigated and that it lacked merit. In April of 1998, Regional Prison Administrator Richard E.

Johnson wrote a letter to Warden Crowley to request that Brown be issued a major misconduct charge for filing a false complaint. At Crowley’s direction, Case Manager Lesatz then issued the charge against Brown for “interference with the administration of rules.” The misconduct charge stated that an investigation had determined that Brown still had an outstanding debt. Because Brown was already being housed in administrative segregation, no further restrictions were imposed on him as a result of the misconduct charge. After a hearing, Brown was found “not guilty” of the charge.

The hearing officer concluded that the evidence was insufficient to show that Brown had deliberately filed false allegations. Furthermore, the hearing officer concluded that Brown’s belief that someone was improperly taking money from his account was not unreasonable. B. Procedural background In June of 1998, Brown filed this suit' in the United States District Court for the Western District of Michigan against a number of the above-mentioned MDOC officials.

Brown claimed that the defendants: (1) discriminated against him because he is African American, (2) denied him due process by overcharging his prison account for amounts due as he was transferred between different facilities within the Michigan prison system, (3) violated the Eighth Amendment’s prohibL tion against cruel and unusual punishment because he had no money left for basic hygiene products such as shampoo or toothpaste, and (4) impeded his First Amendment rights by denying him contact with his family because he could not afford stamps.

Furthermore, in the “statement of facts” appended to his pro se complaint, Brown asserted that the major misconduct charge was issued “in retaliation for seeking to get redress for the (MDOC’

s) violations of my rights.” Brown-later filed a motion to amend his complaint to add a number of other defendants. On August 3, 1998, the magistrate judge to whom Brown’s case was referred recommended that his claims be dismissed for the following reasons: (1) his equal protection claim was frivolous, (2) he had failed to state a due process claim upon which relief could be granted, and (3) he had failed to exhaust his administrative remedies with regard to his First and Eighth Amendment claims. The magistrate judge apparently did not construe Brown’s complaint as setting forth a retaliation claim.

On September 1, 1998, Brown filed objections to the' magistrate judge’s Report and Recommendation. Brown reiterated his retaliation claim in these objections by arguing that the defendants punished him “in violation of the plaintiffs First Amendment right in retaliation for his reporting their actions.” On October 5, 1998, the district court approved in part and rejected in part the magistrate judge’s Report and Recommendation. The district court dismissed Brown’s equal protection and due process claims, but left standing his First and Eighth Amendment claims.

Like the magistrate judge, the district court did not directly address Brown’s retaliation claim. The defendants then filed a motion for

summary judgment on Brown’s remaining claims. In their motion for

summary judgment, the defendants requested dismissal of Brown’s complaint on the grounds that they were entitled to qualified and Eleventh Amendment immunity. The defendants specifically denied the “apparent retaliatory conspiracy” that Brown claimed had occurred. Brown filed a cross-motion for

summary judgment on April 23, 1999, in which he developed his retaliation claim and addressed the defenses that the defendants had asserted. In his Report and Recommendation dated July 30, 1999, the magistrate judge concluded that the defendants’ motion for

summary judgment should be granted. The magistrate judge directly addressed Brown’s retaliation claim and concluded that Brown “fails to allege any specific facts in support of his claim that the misconduct charge was motivated by retaliatory animus,” and that “[tjhere is no indication that the misconduct [charge] was motivated by an improper desire to retaliate against plaintiff.” On August 30, 1999, the district court adopted the Report and Recommendation and dismissed the case in its entirety.

In August of 2000, this court vacated the district court’s dismissal of Brown’s retaliation claim and remanded for further proceedings after concluding that Brown had alleged facts sufficient to state a viable claim under the standard set forth in Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir.1999) (en banc). The district court’s judgment was affirmed in all other respects. Brown v. Crowley, 229 F.3d 1150, 2000 WL 1175615 (6th Cir.2000) (unpublished table decision). After the case was remanded, the two remaining defendants, Warden Crowley and Case Manager Lesatz, filed an answer to Brown’s complaint.

In their answer, the defendants raised the affirmative defense of “immunity.” Brown subsequently filed a motion to amend his complaint to add five defendants. On January 17, 2001, the defendants filed a motion for dismissal or for

summary judgment. In their motion, however, the defendants did not argue for dismissal or

summary judgment on the ground of qualified immunity. ■ The magistrate judge recommended that the defendants’ motion for

summary judgment be granted on the- basis that Brown had failed to establish all of the required elements of a retaliation claim. Over Brown’s objections, the district court adopted the magistrate judge’s Report and Recommendation. Brown’s motion to amend his complaint was then denied as moot. Neither the magistrate judge nor the district court addressed the issue of qualified immunity in granting the defendants’ motion for

summary judgment. This timely appeal followed. II. ANALYSIS A. Retaliation claim On appeal, Brown argues that the district court erred in granting

summary judgment to the defendants on his retaliation claim. A district court’s grant of

summary judgment is reviewed de novo. Holloway v. Brush, 220 F.3d 767, 772 (6th Cir.2000).

Summary judgment is proper where no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In considering such a motion, the court must view the evidence and draw all reasonable inferences in favor of the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The central issue is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). This court has held that retaliation against a prisoner based upon his exercise of a constitutional right violates the Constitution. Thaddeus-X, 175 F.3d at 394 (holding that genuine issues of material fact precluded

summary judgment on a retaliation claim involving a prisoner’s right of access to the courts). A retaliation claim has three elements: (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 plaintiffs protected conduct. Id. at 394.

If the prisoner is able to prove that his exercise of the protected right was a substantial or motivating factor in the defendant’s alleged retaliatory conduct, the burden shifts to the defendant to show that the same action would have been taken even absent the protected conduct. Id. at 399. The defendants argue that the Thaddeus-X standard does not apply to this case because the incidents in question occurred before March 8,1999, the date on which Thaddeus-X was decided. Instead, they maintain that we should apply the “shocks the conscience” standard in analyzing their defense of qualified immunity.

Under this standard, the prisoner has to “establish ‘an egregious abuse of governmental power’ or behavior that ‘shocks the conscience’ ” as a prerequisite to recovery. Herron v. Harrison, 203 F.3d 410, 414 (6th Cir.2000). We need not address this argument, however, because the defendants did not raise the affirmative defense of qualified immunity in their motion for

summary judgment. Although the defendants preserved the defense in their first responsive pleading and in their answer to Brown’s complaint, they did not pursue this argument before the district court in the motion for

summary judgment that they filed after the case was remanded. The Seventh Circuit has explained that, even if a defendant hás “raised” the affirmative defense in a responsive pleading, “the defense of qualified immunity may be deemed as waived if not properly and timely presented before the district court.” Walsh v.

Mellas, 837 F.2d 789, 799 (7th Cir.1988). “[T]he cases holding that an omission of this character constitutes a waiver of the right to present that issue on appeal are legion.” Id. at 799-800 (“The mere fact that an obscure reference to [an affirmative defense] is contained in one of the defendants’ pleadings does not suffice to preserve that issue for appeal.”). We find this reasoning persuasive. See J.C. Wyckoff & Assocs., Inc. v. Standard Fire Ins. Co., 936 F.2d 1474, 1488 (6th Cir.1991) (“Issues not presented to the district court but raised for the first time on appeal are not properly before the court.”).

We will not, therefore, address the defendants’ argument that they have qualified immunity from Brown’s claim. On the other hand, as we discuss below, the judgment of the district court must be vacated and the case remanded for further proceedings, because the district court erred in its application of the law to Brown’s retaliation claim. The defendants will thus be free to reassert their immunity defenses in the district court. See English v.

Dyke, 23 F.3d 1086, 1090 (6th Cir.1994) (explaining that a waiver of an official-immunity defense “need not waive the defense for all purposes but would generally only waive the defense for the stage at which the defense should have been asserted”). “[E]very consideration that classically supports‘the law’s ordinary remand requirement does so here.” INS v.

Ventura, — U.S. -, 123 S.Ct. 353, 355, — L.Ed.2d - (2002) (per curiam) (listing among those considerations the points that the lower-level decisionmaker can “bring its expertise to bear upon the matter; it can evaluate the evidence; it can make an initial determination; and, in doing so, it can, through informed, discussion and analysis, help a [higher] court later determine whether its decision” is appropriate).

By forcing the defendants to present the qualified immunity defense to the district, court in the first instance, we ensure that any future appeal in this case will have the benefit of the district court’s analysis of the issues relating to the defense. We are at a disadvantage, generally, when we address on appeal an issue that was so tersely presented to the district court. District courts are far more familiar with the factual record in their cases than are the courts of appeals, and this knowledge can generate useful insights into the issues surrounding qualified immunity.

By declining to consider qualified immunity defenses on appeal that were not raised properly before the district court, moreover, we might encourage future defendants to properly raise this defense at the district court level. The dissent nevertheless laments our restraint in declining to reach the issue of qualified immunity in this particular case, “where this immunity is certain to be conferred upon remand.” Dissenting Op. at 794. We do not share the dissent’s certainty of outcome.

First, it is far from clear that the defendants are correct in urging their entitlement to immunity under the “shocks the conscience” standard. See Bell v. Johnson, 308 F.3d 594, 2002 WL 31317957, at *14 (6th Cir.2002) (“Thus, after Gibbs [v. Hopkins, 10 F.3d 373 (6th Cir.1993),] we think it clear that an inmate’s First Amendment retaliation claim would be assessed according to the same standards applied to such claims in the other contexts, rather than the ‘shock the conscience’ standard applicable to substantive due process claims.”).

Even applying the standard urged by the defendants, moreover, this court has held that a plaintiff inmate alleged facts showing a conscience-shocking abuse of power where he asserted that prison guards maliciously filed false disciplinary charges against him in retaliation for the exercise of his First Amendment rights. Cale v. Johnson, 861 F.2d 943, 950 (6th Cir.1988). Brown has alleged certain similar circumstances in this case. In short, it is far from a foregone conclusion that the defendants will be entitled to qualified immunity upon remand.

We will now proceed to determine whether the defendants are entitled to

summary judgment by applying the standard that this court announced in Thaddeus-X. The defendants concede that Brown was engaged in protected conduct when he complained about the alleged overcharges to his prison account. Brown has thus established the first element of a retaliation claim. Under Thaddeus-X, the second element requires proof of an adverse action that would deter a person of ordinary firmness from continuing to engage in that conduct.

This court has explained that “while certain threats or deprivations are so de min-imis that they do not rise to the level of being constitutional violations, this threshold is intended to weed out only inconsequential actions, and is not a means whereby solely egregious retaliatory acts are allowed to proceed past

summary judgment.” Thaddeus-X, 175 F.3d at 398. The defendants acknowledge that prisoners who are subject to a major misconduct charge are generally transferred to administrative segregation, and that this court has concluded that placing a prisoner in administrative segregation is an adverse action. Herron, 203 F.3d at 416 (holding that being sentenced to five days of administrative segregation constitutes an adverse action); Thaddeus-X, 175 F.3d at 396 (“In the prison context, an action comparable to transfer to administrative segregation would certainly be adverse”).

They point out, however, that Brown was already in administrative segregation when he was issued the major misconduct charge. The defendants therefore contend that he did not suffer an adverse action. Although Brown was already in administrative segregation and a hearing officer ultimately found him not guilty, the issuance of the major misconduct charge subjected him to the risk of significant sanctions. Mich. Admin. Code R. 791.5505(1) (listing the sanctions that a hearing officer is allowed to impose on a prisoner who is found guilty of major misconduct).

Brown, for example, could have been sentenced to “punitive segregation” if he had been found guilty, a sanction more severe than administrative segregation. Id.; Mich. Admin. Code R. 791.5510 (describing punitive segregation). He also could have lost good-time or disciplinary credits, effectively increasing the amount of remaining time that he was required to serve. Mich. Comp. Laws § 800.33(5); Mich. Admin. Code R. 791.5505(3)(b).

A reasonable jury could conclude that being subjected to the risk of such severe sanctions for raising a legitimate complaint “would deter a person of ordinary firmness from continuing to engage in that [protected] conduct.” Thaddeus-X, 175 F.3d at 394; see also Cale, 861 F.2d at 949-50 (recognizing the § 1983 claim of an inmate in part because “in this case appellant was in danger of further loss of liberty through disciplinary detention and through the loss of good-time credit as the result of the charges filed against him”) (emphasis added).

The third element of a retaliation claim is a causal connection between the protected conduct and the adverse action. This element is satisfied where “the adverse action was motivated at least in part by the plaintiffs protected conduct.” Id. at 894. “Once the plaintiff has met his burden of establishing that his protected conduct was a motivating factor behind any harm, the burden of production shifts to the defendant.” Id. at 399. In order to prevail on

summary judgment, the defendant must then “show that he would have taken the same action in the absence of the protected activity.” Id. The record in the present case establishes that Regional Prison Administrator Johnson sent a memorandum to Warden Crowley directly linking the major misconduct charge to Brown’s protected conduct. After that memorandum was received, the major misconduct charge was issued, despite the fact that prison officials were aware that an accounting problem existed regarding Brown’s prison account and that Brown might have a valid complaint.

In finding Brown not guilty of the misconduct charge, the hearing officer stated: I find that, based on the documents that prisoner did submit at this hearing that his perception that his debt is paid off is not unreasonable at all. Prisoner even states in his complaints that he has grieved that matter and spoken with staff several tiomes [sic] about this matter in an effort to show that he has [ ] paid his debt in full and even shown them the documents that he showed this hearing officer.

Hearing officer finds that it is entirely reasonable and probable that prisoner did legitimately think someone was taking his money and that prisoner had a reasonable belief that his alleations [sic] were not false. Based upon this evidence, we conclude that a reasonable jury could find that Brown has established that the defendants’ adverse action was motivated at least in part by his protected conduct. The burden of production therefore shifts to the defendants.

In holding that Brown failed to establish the third element of a retaliation claim, the district court emphasized that the defendants presented evidence that they had issued Brown a major misconduct charge only after investigating his allegation and concluding that it was meritless.

The district court thus concluded that “[i]t is clear that defendants issued the misconduct ticket solely because they believed plaintiff acted improperly and made false allegations.” Although the evidence presented by the defendants is relevant to the question of whether they “would have taken the same action in the absence of the protected activity,” it is not sufficient to establish as a matter of law that there was no causal connection between the protected conduct and the adverse action.

The district court therefore erred in concluding that no genuine issue of material fact exists regarding the third element of Brown’s retaliation claim. A classic “parade of horribles” is presented by the dissent because of our conclusion, which supposedly “will result in strict liability — or at least a triable factual issue — -whenever a prison official cites a prisoner for misconduct and the charge is subsequently set aside.” Dissenting Op. at 792.

What this critique misses is that we are here concerned with allegations of prison officials retaliating against an inmate for the exercise of his First Amendment rights, not with prisoner misconduct generally. Cf. Wright v.

Newsome, 795 F.2d 964, 968 (11th Cir.1986) (concluding that the plaintiff inmate had “alleged facts bringing actions that might not otherwise be offensive to the Constitution, such as the search itself or the confiscation and destruction of [legal and] nonlegal materials ..., within the scope of the Constitution by alleging that the actions were taken in retaliation for filing lawsuits and administrative grievances”).

The dissent contends that “a prison official does not abuse his position of authority merely by invoking a conventional administrative procedure for sanctioning prisoner misconduct.” Dissenting Op. at 798. This is accurate as a general statement of the law, but it has little application to the facts of this case, where there was no misconduct.

All Brown did was file non-frivolous grievances and write a letter to the police asking them to investigate prison officials for embezzlement when, according to the hearing officer, he “did legitimately think someone was taking his money.” On the facts as alleged by the plaintiff, the defendants and the dissent seem to have forgotten the childhood doggerel that “sticks and stones will break my bones, but words will never hurt me.” Johnson v.

Pedersen, 1986 WL 11028, at *2 (N.D.Ill.1986) (holding that prison officials could not disregard a prisoner’s due process rights when they punished him for “such a relatively minor offense as swearing”). We are dubious that the issuance of a major misconduct ticket under such circumstances could ever be deemed consistent with First Amendment principles. Prison officials are clearly free to punish inmate conduct that threatens the orderly administration of the prison.

But “[t]he State must ensure .. -. .that [conduct-regulating] portions of the prison rules are not used as a backdoor means of punishing inmates for exercising their right to criticize the legality of officials’ actions. Any attempt to use the rules in, this manner would result in an unconstitutional application of the rules.” Clarke v. Stalder, 121 F.3d 222, 230 (5th Cir.), vacated on other grounds by 133 F.3d 940 (5th Cir.1997).

In sum, genuine issues of material fact remain as to whether Brown was- subjected to a risk of significant sanctions that would deter a person of ordinary firmness from continuing to engage in protected conduct, and whether the defendants can rebut the causal connection between the two. The district court therefore erred in granting

summary judgment to the defendants. Accordingly, the district court’s judgment is vacated and the case is remanded for further proceedings. On remand, the district court should also reconsider its order denying Brown’s motion to amend his complaint, because that motion is no longer moot. B.

Request for a remand to a different district court judge Brown also requests that we remand this case to a different district court judge, based upon his contention that he “can not and will not receive a fair trial before the current judge.” In particular, Brown claims that “[t]he district court seemed to [analyze] everything in favor of the defendants [ ] and thereby violated the law which states that he is to view the facts in favor of the nonmoving party[ ].” Brown also contends that the district court judge “has always been [biased against] the plaintiffs case whenever the plaintiff requested anything from the court.” Although we have the authority pursuant to 28 U.S.C. § 2106 to remand the case to a different district court judge, “this is an extraordinary power and should rarely be invoked.... ” Armco, Inc. v.

United Steelworkers of Am., 280 F.3d 669, 683 (6th Cir.2002).

Because Brown has not submitted any proof of personal bias that would require recusal pursuant to 28 U.S.C. § 144, we have considered the following factors in' evaluating his request: (1) whether the original judge would reasonably be expected upon remand to have substantial difficulty in putting out of his or her mind previously-expressed views or findings determined to be erroneous or based on evidence that must be rejected, (2) whether reassignment is advisable to preserve the appearance of justice, and (3) whether reassignment would entail waste and duplication out of proportion to any gain in preserving the appearance of fairness.

Id. None of these factors weigh in favor of remanding the present case to a different district court judge. There is nothing in the record or in Brown’s brief to convince us that the district court judge would have difficulty considering the case on remand in an objective manner. Nor is there any reason to think that reassignment is advisable to preserve the appearance of justice. It is therefore unnecessary for a new district court judge to become familiar with the complex factual and procedural .history of this case.

As a result, we decline to grant the extraordinary relief of remanding this case to a different district court judge. III. CONCLUSION For all of the reasons set forth above, we VACATE the judgment of the district court and REMAND the case for further proceedings consistent with this opinion.