     Case: 18-20480       Document: 00515030515         Page: 1    Date Filed: 07/11/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit


                                      No. 18-20480
                                                                                 FILED
                                                                             July 11, 2019
                                                                            Lyle W. Cayce
ANDREW GONZALES,                                                                 Clerk

               Plaintiff – Appellant,

v.

MATT GROSS, Assistant Regional Director; CHRISTOPHER LACOX,
Assistant Warden; JOHN DOE, Unit Classification Coordinator; DEBBIE
BALLARD, Chief of Classification; JOHN DOE, Assistant Warden,

               Defendants – Appellees.




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:17-CV-3190


Before KING, ELROD, and ENGELHARDT, Circuit Judges.
PER CURIAM:*
       Andrew Gonzales, proceeding pro se and in forma pauperis, filed a 42
U.S.C. § 1983 complaint against several employees of the Texas Department
of Criminal Justice, alleging that these employees wrongfully imposed a
Security Precaution Designator (SPD) code on him in retaliation for filing




       * Pursuant to Fifth Circuit Rule 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited circumstances set forth
in Fifth Circuit Rule 47.5.4.
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                                   No. 18-20480
grievances. The district court dismissed the complaint for failure to state a
claim. We REVERSE and REMAND.
                                         I.
      The allegations in Gonzales’s complaint stem from an incident that
occurred at the Estelle Unit in September 2014. According to Gonzales, he and
several other inmates got into a physical altercation with several correctional
officers, including Officer Lenderman.            Gonzales claims that Officer
Lenderman did not suffer any injuries. Gonzales was subsequently charged
with and found guilty of disciplinary offenses—participating in a riot and
assaulting an officer. As a result, Gonzales lost certain privileges for 45 days
and forfeited 349 days of good-time credit.           Gonzales unsuccessfully filed
grievances to challenge the disciplinary conviction.
      Gonzales alleges that Major John Doe, as a warden designee, “personally
threatened [him] against filing a grievance” and warned that “he would get
f----d over if he filed a grievance.” Gonzales nevertheless filed a grievance, and
he alleges that the prison officials placed the SPD code in his file in retaliation.
According to Gonzales, Major Doe “arbitrarily and maliciously direct[ed]
Debbie   Ballard,    [Chief   of   Classification,]     to   create   [a]   false   SPD
recommendation in retaliation.” Specifically, Gonzales alleges that Major Doe
and Ballard “alter[ed] or falsif[ied] record[s] so [the] SPD recommendation . . .
reflect[ed that Gonzales] caused Officer Lenderman serious injuries.”
Gonzales also alleges that another John Doe, the unit classification
coordinator, placed the SPD classification for causing a serious injury although
his disciplinary records showed that Officer Lenderman did not suffer a serious
injury. Gonzales further alleges that the remaining defendants, Christopher
Lacox, the assistant warden, and Matt Gross, the assistant regional director,
failed to stop the retaliation.


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                                       No. 18-20480
       After Gonzales filed a pro se brief, the district court ordered Gonzales to
file a more definite statement, which he did. The district court also directed
the Texas Attorney General to file a Martinez report, which included
Gonzales’s prison grievance and disciplinary records. 1 The Texas Attorney
General also filed a supplement to the Martinez report to include Gonzales’s
sealed medical records.
       The district court issued a memorandum opinion and order dismissing
Gonzales’s complaint for failure to state a claim upon which relief may be
granted. Relying on the grievance records upholding the SPD code, the district
court held that Gonzales failed to allege facts supporting the causation element
of his retaliation claim. 2 The district court dismissed Gonzales’s complaint
with prejudice. Gonzales appeals the dismissal of his retaliation claim as well
as the denial of an opportunity to amend his complaint.
                                             II.
       We review de novo the dismissal of a complaint for failure to state a
claim. Innova Hosp. San Antonio, L.P. v. Blue Cross & Blue Shield of Ga., Inc.,
892 F.3d 719, 726 (5th Cir. 2018). “[W]e must ‘accept all well-pleaded facts as
true and view those facts in the light most favorable to the plaintiff.’ ” Id.
(quoting Richardson v. Axion Logistics, L.L.C., 780 F.3d 304, 305–06 (5th Cir.


       1Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1978) (approving the district court order
requiring prison officials to investigate underlying factual allegations to assist the court’s
assessment of an inmate’s 42 U.S.C. § 1983 claim); see also Wiley v. Thompson, 234 F. App’x
180, 182 (5th Cir. 2007) (observing that while this court has found it useful to request
administrative records compiled in a Martinez report, the report “cannot be used to resolve
disputed material facts if the defendants’ assertions conflict with pleadings.”).

       2 On appeal, Gonzales does not challenge the district court’s conclusion that he failed
to state a due process claim and that Heck v. Humphrey, 512 U.S. 477 (1994), bars his
attempts to undermine the validity of his disciplinary conviction resulting from the incident.
Therefore, we consider these arguments abandoned and review only the retaliation claim
based on the alleged wrongful imposition of the SPD code, which Gonzales briefed. See
Sissom v. Univ. of Tex. High Sch., No. 17-50913, 2019 WL 2462609, at *3 (5th Cir. June 13,
2019) (published) (requiring pro se appellants to brief arguments to preserve them).
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                                  No. 18-20480
2015)). To survive a motion to dismiss, a complaint must contain sufficient
factual matter which, when taken as true, states “a claim to relief that is
plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A
claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “The
facts alleged must ‘be enough to raise a right to relief above the speculative
level,’ but the complaint may survive a motion to dismiss even if recovery
seems ‘very remote and unlikely.’ ” Innova Hosp., 892 F.3d at 726 (quoting
Twombly, 550 U.S. at 555–56). “If a complaint is written pro se, we are to give
it a liberal construction.” Carlucci v. Chapa, 884 F.3d 534, 538 (5th Cir. 2018);
see also Estelle v. Gamble, 429 U.S. 97, 106 (1976).
                                       III.
      “To state a valid claim for retaliation under [S]ection 1983, a prisoner
must allege (1) a specific constitutional right, (2) the defendant’s intent to
retaliate against the prisoner for his or her exercise of that right, (3) a
retaliatory adverse act, and (4) causation.” Brown v. Taylor, 911 F.3d 235, 245
(5th Cir. 2018) (alteration in original) (quoting Bibbs v. Early, 541 F.3d 267,
270 (5th Cir. 2008)). “Filing a grievance is a constitutionally protected activity
. . . .” Id. (quoting Huff v. Thaler, 518 F. App’x 311, 312 (5th Cir. 2013)). To
show causation, a plaintiff must allege that “but for the retaliatory motive[,]
the complained of incident . . . would not have occurred.” Woods v. Smith, 60
F.3d 1161, 1166 (5th Cir. 1995). A plaintiff must “produce direct evidence of
motivation” or “allege a chronology of events from which retaliation may
plausibly be inferred.” Id. (quoting Cain v. Lane, 857, F.2d 1139, 1143 n.6 (7th
Cir. 1988)).
      The district court erred in dismissing Gonzales’s complaint because it
sufficiently alleges “a claim to relief that is plausible on its face.” Twombly,
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                                  No. 18-20480
550 U.S. at 570. Gonzales’s complaint and more definite statement allege that
the prison officials imposed the SPD code on Gonzales because he filed a
grievance regarding his disciplinary convictions. Furthermore, the SPD code
was initiated on the same day as Gonzales’s filing of his grievance, which
increases the plausibility of retaliation. See Richard v. Martin, 390 F. App’x
323, 325 (5th Cir. 2010) (holding that a prisoner’s allegations that he was
placed in solitary confinement on the same day he filed a grievance was
sufficient to state a claim). These allegations set forth a “chronology of events
from which retaliation may be plausibly inferred.” Woods, 60 F.3d at 1166.
Gonzales also alleges that Major Doe threatened him against filing a grievance.
In Brown, we held that a civil commitment facility official’s statements that a
committed person was known as “a problem” for filing grievances and the
facility would not tolerate further problems, if true, could constitute direct
evidence of retaliatory motive. Brown, 911 F.3d at 245–46. Likewise, Major
Doe’s threat, if true, can constitute direct evidence of retaliatory motive.
      The district court concluded that Gonzales did not allege facts that would
satisfy the causation element because “he [did] not allege facts showing that,
but for any grievance that he filed, the SPD [c]ode would not have been placed
on [him].” In the district court’s view, even without any alleged retaliation, the
SPD code would have been placed anyway in connection with the disciplinary
conviction. However, at this stage of litigation, we must view the facts in the
light most favorable to Gonzales. See Brown, 911 F.3d at 246. Moreover, the
Texas Attorney General’s own filings—namely, the offense report on the
incident—show that Officer Lenderman suffered non-serious injury, even
though the prison officials imposed the SPD code on the grounds that Gonzales
caused serious injuries. This discrepancy—combined with Major Doe’s threat,




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                                    No. 18-20480
which we accept as true at this stage—lead to a plausible inference that the
SPD code was placed on Gonzales as a retaliation. 3
                                         ***
      We REVERSE the dismissal of Gonzales’s complaint as to the retaliation
claim and REMAND for further proceedings consistent with this opinion.




      3  Because we reverse the dismissal of the complaint, we do not address whether the
district court abused its discretion in denying Gonzales an opportunity to amend his
complaint before dismissing it.
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