               United States Court of Appeals
                          For the Eighth Circuit
                      ___________________________

                              No. 16-1212
                      ___________________________

                          Christopher Shawn Deaton,

                     lllllllllllllllllllll Plaintiff - Appellant,

                                         v.

 Jim Smith, Auditor, Compliance Division of the Board of Corrections; Randy
  Watson, Warden, Varner Supermax, ADC; Moses Jackson, Deputy Warden,
 Varner Supermax, ADC; Mark Stevens, Commander, Varner Supermax, ADC;
  Fredrick D. Gilbert, Corporal, Varner Supermax, ADC; Grant Harris, Chief
                                 Deputy, ADC,

                   lllllllllllllllllllll Defendants - Appellees.
                                    ____________

                  Appeal from United States District Court
               for the Eastern District of Arkansas - Pine Bluff
                                ____________

                            Submitted: July 5, 2016
                             Filed: July 26, 2016
                                [Unpublished]
                                ____________

Before COLLOTON, GRUENDER, and KELLY, Circuit Judges.
                        ____________
PER CURIAM.

       Christopher Deaton brought a 42 U.S.C. § 1983 action in which he alleged that,
while he was an inmate at the Varner Unit of the Arkansas Department of Correction,
officials enforced grooming policy in a manner that constituted “calculated
harassment unrelated to prison needs,” and amounted to “blackmail.” He also
complained that officials moved him to punitive housing in retaliation for filing a
grievance, and demonstrated deliberate indifference to his health and safety. He
appeals after the district court1 dismissed certain claims under 42 U.S.C. § 1997e(a)
for failure to exhaust administrative remedies, and granted summary judgment for
defendants on the merits as to the remaining claims. Upon careful de novo review of
the record, and consideration of the parties’ submissions on appeal, we find no basis
for reversal. Unlike the inmate plaintiff in Scher v. Engelke, 943 F.2d 921, 924 (8th
Cir. 1991), who established a claim of “calculated harassment” in violation of the
Eighth Amendment when guards conducted numerous unnecessary searches and
confiscated property in retaliation for the inmate reporting misconduct by another
guard, Deaton was in violation of a prison grooming policy when officials enforced,
or threatened to enforce, the rules against him. Deaton’s retaliation claim under the
First Amendment fails in light of circuit precedent, because there was some evidence
that he was in violation of the grooming policy. Orebaugh v. Caspari, 910 F.2d 526
(8th Cir. 1990) (per curiam); see Hartsfield v. Nichols, 511 F.3d 826, 829 (8th Cir.
2008). Accordingly, we affirm. See 8th Cir. R. 47B.




      1
       The Honorable J. Leon Holmes, United States District Judge for the Eastern
District of Arkansas, adopting the report and recommendations of the Honorable Beth
Deere, United States Magistrate Judge for the Eastern District of Arkansas.

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KELLY, Circuit Judge, concurring in part and dissenting in part.

       I concur as to all issues raised on appeal, with one exception. I respectfully
disagree with the suggestion that Scher v. Engelke precludes an Eighth Amendment
calculated harassment claim merely because a prisoner is actually in violation of a
particular prison policy. 943 F.2d at 924 (holding that the evidence regarding the
searches of Scher’s prison cell showed a “pattern of calculated harassment unrelated
to prison needs from which the U.S. Supreme Court has stated that prisoners are
protected.”). Because I believe Deaton’s Eighth Amendment claim has not been
properly addressed, I would reverse and remand for further consideration of this claim
only.
                        ______________________________




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