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

                                                 FILED
                                                                          October 19, 2009
                                     No. 08-10948
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk




KAMAL K. PATEL,

                                                   Plaintiff-Appellant,

versus

JOSE SANTANA, Regional Designator; JASON SICKLER, Regional Counsel;
BUREAU OF PRISONS,

                                                   Defendants-Appellees.




                   Appeal from the United States District Court
                        for the Northern District of Texas
                                 No. 4:08-CV-252




Before DAVIS, SMITH, and DENNIS, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*


       Kamal Patel alleges that federal prison officials revoked a previously-ap-


       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
                                         No. 08-10948

proved transfer to retaliate against him for exercising his constitutional right of
access to the courts. Patel sued the Bureau of Prisons (“BOP”) and two of its offi-
cials for monetary and injunctive relief. The district court dismissed all claims
with prejudice. We affirm in part and reverse and remand in part.


                                                I.
       Patel is an inmate in a Pennsylvania federal prison. In 2005, while housed
at a federal prison in Texas, he sued the United States pro se in the Northern
District of Texas under the Federal Tort Claims Act (“FTCA”), alleging that the
BOP had given him inadequate medical treatment.
       In the course of that litigation, the government approached Patel with a
settlement offer whereby the government would agree to provide a certain
amount of medical care if Patel would drop his lawsuit. The district court found
that the government’s consideration in this settlement offer was “illusory,” be-
cause the government already owed Patel the level of care offered.1
       In 2006, the district court in Texas transferred the action to the Eastern
District of Arkansas, because Patel had been reassigned to a prison in that area.
Patel objected to the transfer, because he feared that the Arkansas court would
not be “as sensitive to improprieties on the part of the government and its coun-
sel” as the court in Texas had been.2
       According to Patel, his fears about the transfer were vindicated. While his
FTCA action was still in the Northern District of Texas and he was incarcerated


       1
           Order Transferring Case, filed Apr. 12, 2006, at 10.
       2
         See id. at 11. In its Order Transferring Case, the district court explained that the gov-
ernment had made false allegations about Patel’s involvement in a violent incident, had given
false information about Patel’s medical condition, and had tricked Patel into undergoing a
medical examination for the government’s litigation purposes by making Patel believe it was
part of his treatment. Id. at 11 n.5. After the transfer to the Eastern District of Arkansas,
the case was transferred to the Eastern District of North Carolina, then back to the Northern
District of Texas.

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                                        No. 08-10948

in Arkansas, he had requested to be transferred to a prison in Texas to be closer
to his family. He claims that the BOP had approved that request and that the
transfer was imminent. But, he avers, shortly after his suit was transferred to
the Eastern District of Arkansas, the Bureau revoked his move back to Texas.
       Patel alleges that the BOP revoked his already-approved prison transfer
to retaliate for his decision to continue litigating the FTCA action instead of ac-
cepting the settlement offer. That allegation forms the basis of the case at hand.


                                               II.
       Patel sues for retaliation against his exercise of his First Amendment right
of access to the courts.3 He seeks injunctive relief against the BOP and defen-
dant Jose Santana to reinstate his transfer to a Texas federal prison. He seeks
monetary relief against Santana and Jason Sickler.
       The district court dismissed with prejudice all of Patel’s claims sua sponte,
in accordance with the screening provisions of the Prison Litigation Reform Act
(“PLRA”), codified at 28 U.S.C. § 1915A.4 The court characterized Patel’s claim
against the BOP as arising under Bivens v. Six Unknown Named Agents of the
Federal Bureau of Narcotics, 403 U.S. 388 (1971). Noting that Bivens authorizes
claims against only individual federal officers, not agencies, the court dismissed




       3
         A prisoner’s constitutional right to access the courts is an aspect of his First Amend-
ment right to petition the government for redress of grievances. See Bounds v. Smith, 430
U.S. 817, 821 (1977) (“It is now established beyond a doubt that prisoners have a constitution-
al right of access to the courts.”); see also Bill Johnson’s Restaurants, Inc. v. NLRB, 461 U.S.
731, 741 (1983) (“[T]he right of access to the courts is an aspect of the First Amendment right
to petition the Government for redress of grievances.”).
       4
          Section 1915A(a) and (b)(1) provides that “[t]he court shall review . . . a complaint in
a civil action in which a prisoner seeks redress from a governmental entity or officer or em-
ployee of a governmental entity. . . . On review, the court shall identify cognizable claims or
dismiss the complaint, or any portion of the complaint, if the complaint . . . is frivolous, mali-
cious, or fails to state a claim upon which relief may be granted.”

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all claims against the BOP.5
      The court next turned to Patel’s claims against Santana and Sickler, hold-
ing that to maintain a retaliation claim in this circuit, a plaintiff must allege an
actual injury from denial of a specific constitutional right. Because Patel was
still prosecuting his FTCA action, the court reasoned, he could not claim that his
right to access the courts had been infringed by the defendants, so he could not
bring a retaliation claim.
      Finally, the district court noted that the PLRA at 42 U.S.C. § 1997e(e),
along with this circuit’s precedent, precludes a prisoner from bringing actions for
compensatory damages for constitutional violations without a showing of physi-
cal injury. Because Patel had made no such showing, that also was grounds for
dismissing the claim for compensatory relief against Santana and Sickler.
      Patel filed a “motion for reconsideration,” which the district court con-
strued as a motion for new trial. In a brief supporting his motion, Patel argued
that the court had applied the incorrect legal standard for his retaliation claim.
He also contended that, to the extent his claims against the Bureau could be con-
strued as Bivens claims, he should be given an opportunity to amend his com-
plaint. The district court denied reconsideration, and Patel appeals.


                                              III.
      We review dismissals under § 1915A de novo. Geiger v. Jowers, 404 F.3d
371, 373 (5th Cir. 2005). We address, in turn, the dismissal, with prejudice, of
Patel’s claims against the BOP, then the claims against Santana and Sickler.


                                              A.
      Patel argues that the district court improperly characterized his claims for



      5
          See Fed. Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 484-86 (1994).

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injunctive relief against the BOP as arising under Bivens. He further asserts
that, even if his complaint could be construed in this way, the court should have
given him the chance to amend and clarify his complaint instead of dismissing
his claims against the BOP with prejudice.
       We agree. The complaint did not request relief against the BOP under
Bivens but, in fact, specifically requested only injunctive relief against the BOP
SSa form of relief that would not be proper under Bivens.6
       We express no opinion about whether Patel will be able to show that the
district court has jurisdiction over his claims against the BOP on a ground other
than Bivens. We note, however, that “[p]ro se prisoner complaints must be read
in a liberal fashion and should not be dismissed unless it appears beyond all
doubt that the prisoner could prove no set of facts under which he would be en-
titled to relief.” Parker v. Carpenter, 978 F.2d 190, 192 (5th Cir. 1992) (citation
omitted). To the extent that Patel’s complaint is ambiguous in identifying a
cause of action against the BOP, he should have been given leave to amend his
complaint without prejudice.


                                               B.
       Patel seeks compensatory, punitive, and nominal damages against San-
tana and Sickler and injunctive relief against Santana. The claims for compen-
satory relief are barred by § 1997e(e), which provides that “[n]o Federal civil ac-
tion may be brought by a prisoner . . . for mental or emotional injury suffered
while in custody without a prior showing of physical injury.” As the district
court rightly pointed out, our precedent holds that “[s]ection 1997e(e) applies to



       6
         Bush v. Lucas, 462 U.S. 367, 378 (1983) (discussing the Court’s line of Bivens cases
and concluding that “[t]he federal courts’ statutory jurisdiction to decide federal questions con-
fers adequate power to award damages to the victim of a constitutional violation.”) (emphasis
added).

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all federal civil actions in which a prisoner alleges a constitutional violation,
making compensatory damages for mental or emotional injuries non-recoverable,
absent physical injury.” Geiger v. Jowers, 404 F.3d 371, 375 (5th Cir. 2005). Be-
cause Patel alleges no physical injury resulting from the revocation of his prison
transfer, he cannot recover compensatory damages.
       What remains, then, are Patel’s retaliation claims for punitive and nomin-
al damages and injunctive relief.7 “To prevail on a claim of retaliation, a prison-
er must establish (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 retalia-
tory adverse act, and (4) causation.” Morris v. Powell, 449 F.3d 682 (5th Cir.
2006) (citation omitted).
       The district court dismissed Patel’s retaliation claims because it found that
he failed on the first prong. Though acknowledging that Patel could show he had
a constitutional right to access to the courts under the First Amendment, the
court held that he needed to show, further, that the complained-of actSSthe revo-
cation of his prison transferSShad hindered his ability to pursue his FTCA ac-
tion. Because Patel was still litigating the FTCA action, the court concluded
that he could make no such showing.
       The district court relied on Lewis v. Casey, 518 U.S. 343, 351 (1996), for
the proposition that a prisoner seeking redress for the violation of his right of ac-
cess to the courts must “go one step further and demonstrate that the alleged
[infringing act] hindered his efforts to pursue a legal claim.” The plaintiff in
Lewis, however, did not allege retaliation against his exercise of his First
Amendment right of access to courts; he alleged a direct infringement of that
right (in his case, because of inadequate prison law library access).


       7
        Although § 1997e(e) bars Patel’s claims for compensatory damages, it does not bar his
other requests for monetary relief, punitive and nominal damages. Hutchins v. McDaniels,
512 F.3d 193, 198 (5th Cir. 2007).

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      This case is different. Patel’s claim is one of retaliation forSSnot direct
hindrance ofSShis exercise of a constitutional right. Where a prisoner makes a
retaliation claim, he is not required to show that the alleged retaliatory act is
still ongoing in a way that is directly preventing future exercise of his con-
stitutional right. In the retaliation context, we use a different standard.
      In Morris, 449 F.3d at 686, we announced a de minimis standard for pris-
oner retaliation claims: “Retaliation against a prisoner is actionable only if it is
capable of deterring a person of ordinary firmness from further exercising his
constitutional rights.” “[T]his [de minimis] threshold is intended to weed out on-
ly inconsequential actions and is not a means to excuse more serious retaliatory
acts by prison officials.” Id.
      Our analysis in Morris focused on the third of four showings a prisoner
must make in a retaliation claimSSa retaliatory adverse actSSand not on the
first, initial showing of a specific constitutional right. Id. at 684. This is where
the district court also should have begun its analysis.
      The question is not whether Patel can show that the revocation of his
transfer is actively preventing him from litigating his FTCA claim; rather, the
issue is whether the revocation of a previously approved prison transfer is a suf-
ficiently chilling retaliatory actSSthat is, one that would deter a person of ordi-
nary firmness from subsequently exercising his right of access to the courts. It
follows that, because it applied the incorrect legal standard for prisoner retalia-
tion claims, it was improper for the district court to dismiss Patel’s claims
against the two individual defendants.


                                        IV.
      For the foregoing reasons, we AFFIRM the dismissal of the compensatory
damage claims against Santana and Sickler. We REVERSE the dismissal of the
claims for nominal and punitive damages against Santana and Sickler and the

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dismissal of the claims for injunctive relief against Santana and the BOP. We
REMAND for further proceedings. We express no view on the ultimate merits
of this case or on what rulings the district court should make on remand.




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