           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                            2     Scott v. Churchill, et al.                   No. 03-2427
        ELECTRONIC CITATION: 2004 FED App. 0235P (6th Cir.)
                    File Name: 04a0235p.06                                                        _________________
                                                                                                       COUNSEL
UNITED STATES COURT OF APPEALS
                                                                              ARGUED: Kevin R. Himebaugh, OFFICE OF THE
                   FOR THE SIXTH CIRCUIT                                      ATTORNEY GENERAL, Lansing, Michigan, for Appellant.
                     _________________                                        S. Grace Davis, MILLER, JOHNSON, SNELL &
                                                                              CUMMISKEY, Grand Rapids, Michigan, for Appellee.
 DAVID J. SCOTT,                  X                                           ON BRIEF: Kevin R. Himebaugh, OFFICE OF THE
             Plaintiff-Appellee, -                                            ATTORNEY GENERAL, Lansing, Michigan, for Appellant.
                                   -                                          S. Grace Davis, David R. Cleveland, MILLER, JOHNSON,
                                   -   No. 03-2427                            SNELL & CUMMISKEY, Grand Rapids, Michigan, for
            v.                     -                                          Appellee.
                                    >
                                   ,                                                              _________________
 PATRICK CHURCH ILL,               -
 Inspector, Carson City            -                                                                  OPINION
 Regional Facility, et al.,        -                                                              _________________
                    Defendants, -
                                   -                                             KAREN NELSON MOORE, Circuit Judge. Defendant-
                                   -                                          Appellant Philip Bair (“Bair”) appeals from the denial of
 PHILIP BAIR ,
                                   -                                          qualified immunity in Plaintiff-Appellee David J. Scott’s
           Defendant-Appellant. -                                             (“Scott”) § 1983 suit against him. Scott, a prisoner at the
                                  N                                           Michigan Department of Corrections Carson City Regional
        Appeal from the United States District Court                          Facility, alleges that Bair, a guard at the facility, retaliated
   for the Western District of Michigan at Grand Rapids.                      against Scott’s exercise of his First Amendment rights by
   No. 95-00571—David W. McKeague, District Judge.                            filing a false major misconduct ticket against Scott. This is
                                                                              the third time this court has heard an appeal in this case on the
                      Argued: June 11, 2004                                   issue of the proper standard governing prisoner First
                                                                              Amendment retaliation claims; contested in this appeal is the
               Decided and Filed: July 23, 2004                               standard that would have been apparent to a reasonable
                                                                              officer when the underlying events took place, in July of
     Before: SILER, MOORE, and BALDOCK, Circuit                               1995. Because this court’s case law in July of 1995 would
                      Judges.*                                                have put a reasonable officer on fair warning that his conduct
                                                                              was illegal, the denial of qualified immunity is AFFIRMED.


    *
     The Ho norable B obb y R. B aldock, Circuit Judge of the United States
Court of Appeals for the Tenth Circuit, sitting by designation.

                                    1
No. 03-2427                            Scott v. Churchill, et al.           3    4    Scott v. Churchill, et al.                   No. 03-2427

                         I. BACKGROUND                                           Bair and another guard, Dale Feldpausch (“Feldpausch”).
                                                                                 Thomas stated that Bair described the events of the morning
   As the nonmoving party, it is Scott’s version of the facts                    to Feldpausch, consonant with Scott’s version of the facts.
which must be relied upon. On July 6, 1995, Scott was                            Bair told Feldpausch that he did not like Scott, due to Scott’s
required to meet with a hearing officer on an unrelated                          repeated conflicts with Feldpausch over Scott’s jailhouse
misconduct ticket. Upon Scott’s checking in with Bair to                         lawyer activities. Feldpausch recommended to Bair that in
gain entry to the building, Bair said to Scott of his misconduct                 order to cover up his wrongdoing, Bair should write a false
ticket, “[T]hat doesn’t surprise me.” Joint Appendix (“J.A.”)                    ticket against Scott, alleging that Bair had patted down Scott
at 174. Scott asked Bair to explain this remark and indicated                    after a verbal threat — the version of events Bair would
that he was considering filing a grievance against Bair. At                      ultimately write up in the Misconduct Charge. Thomas also
that point, Bair walked over to where Scott was standing and                     stated that Feldpausch had told Bair that to conceal more
stated, “You don’t know who you’re f---ing with.” J.A. at 34.                    effectively his wrongdoing, Bair should have immediately
Bair then grabbed the back of Scott’s neck and continued,                        written the false ticket and taken Scott to administrative
“You want to f--- with me, b----!”. J.A. at 34. Later that day,                  segregation.
Scott submitted a grievance against Bair, reciting facts
consistent with his later allegations in the complaint. The                         On August 16, 1995, Scott filed suit pro se against a host of
following day, on July 7, Bair filed a Major Misconduct                          defendants on various claims, including a claim against Bair
Charge against Scott for insolence. A Major Misconduct                           for retaliation against Scott’s exercise of First Amendment
Charge can result in a higher security classification,                           rights. The district court initially dismissed Scott’s
placement in administrative segregation, or forfeiture of                        complaint, on August 31, 1995. In response to a motion by
good-time credits. On July 27, a hearing was held on the                         Scott for rehearing, the district court reinstated Scott’s
Misconduct Charge, and the charge was “not sustained,” with                      Fourteenth Amendment and First Amendment retaliation
the hearing officer indicating that Bair’s credibility was                       claims but affirmed the dismissal of his Eighth Amendment
“questionable,” relying in part on the fact that the Misconduct                  claim. Scott filed an amended complaint, and on August 19,
Charge was filed “24 hours later, after the inmate had claimed                   1996, the defendants moved to dismiss or for summary
to have been assaulted.” J.A. at 147.                                            judgment, which latter motion was granted on August 28,
                                                                                 1997. This was a grant of summary judgment on the merits,
  Scott also submitted below an affidavit from a fellow                          rather than on the basis of qualified immunity. Scott appealed
inmate at the facility, Richard F. Thomas (“Thomas”), who                        to this court, which initially affirmed the grant of summary
claims to have overheard a conversation on July 61 between                       judgment in an unpublished order dated December 9, 1999.
                                                                                 See Scott v. Churchill, No. 97-2061, 1999 WL 1206937 (6th
                                                                                 Cir. Dec. 9, 1999). Scott filed a motion for rehearing, which
    1                                                                            was granted in a second unpublished order, on April 6, 2000.
       There seems to be some confusion in Scott’s materials as to when
the events took place, on July 6 or July 7. The dates on each of the prison      The order affirmed the dismissal of most of Scott’s claims,
forms indicate that the inc ident took place and the Misconduct Charge           but, applying the standards of Thaddeus-X v. Blatter, 175
was filed on July 6. A lthough Thom as’s affidavit indicate s that he            F.3d 378 (6th Cir. 1999) (en banc), reinstated Scott’s
overheard this conversation on the morning o f July 7, the conversation          retaliation claim against Bair and remanded the case for
itself could only have happened on July 6. G iven that Tho mas’s affidavit       further proceedings. See Scott v. Churchill [Scott I], No. 97-
was filed a year after the inciden t, it is reasonable to assume that this was
an insignificant erro r, rather than evid ence of unreliability.                 2061, 2000 WL 519148 (6th Cir. April 6, 2000). On remand,
No. 03-2427                     Scott v. Churchill, et al.     5   6     Scott v. Churchill, et al.                    No. 03-2427

counsel was appointed for Scott, and Bair filed for summary                               II. ANALYSIS
judgment on the basis of qualified immunity on July 24,
2000. That motion was granted on March 29, 2001, on the            A. Standard of Review
basis that the clearly established law at the time of the
incident would have put a reasonable officer on notice only          We review de novo the denial of summary judgment on the
that behavior “shocking to the conscience” could support a         basis of qualified immunity. Bukowski v. City of Akron, 326
retaliation claim. Scott appealed again to this court; six         F.3d 702, 707 (6th Cir. 2003). Such a denial, to the extent it
weeks before the case was argued, this court issued Bell v.        turns upon issues of law and not of disputed fact, is
Johnson, 308 F.3d 594 (6th Cir. 2002), holding that in 1994,       immediately appealable as a final order. Mitchell v. Forsyth,
the “shocks the conscience” test was not the clearly               472 U.S. 511, 530 (1985); Weaver v. Shadoan, 340 F.3d 398,
established law governing retaliation claims, and that some        406 (6th Cir. 2003).
lesser standard governed the qualified immunity
determination. The panel deciding Scott’s appeal relied on         B. The Elements of a Retaliation Claim
Bell in reversing the grant of summary judgment on the basis
of qualified immunity. In an unpublished opinion, the panel           Under Thaddeus-X, in order to establish a First Amendment
stated that                                                        retaliation claim, a prisoner must demonstrate that he was
                                                                   (1) engaged in protected conduct; (2) that he suffered an
  The [Bell] court concluded that as early as 1989, the            adverse action; and (3) that a causal connection exists
  applicable standard for evaluating an adverse action             between the protected conduct and the adverse action. 175
  undertaken in retaliation for an individual’s exercise of        F.3d at 394. In order for the retaliation to be actionable, it
  his or her First Amendment rights is whether it is capable       must be “capable of deterring a person of ordinary firmness
  of deterring a person of ordinary firmness from                  from exercising his or her right to access the courts.” Id. at
  exercising [such] rights . . . .                                 398. At this point in the litigation, it is settled that Scott has
    In light of Bell, we REVERSE the district court’s              made out a case that can survive summary judgment on the
  decision, and REMAND to the district court for                   merits; the only remaining question is qualified immunity.
  reconsideration.                                                 An official defendant in a § 1983 suit is entitled to qualified
                                                                   immunity if her conduct “does not violate clearly established
Scott v. Churchill [Scott II], No. 01-1625, 2003 WL 77208,         statutory or constitutional rights of which a reasonable person
*1-*2 (6th Cir. Jan. 8, 2003) (internal quotation marks            would have known.” Bell, 308 F.3d at 601 (internal
omitted). Upon remand for reconsideration, the parties             quotations omitted).
briefed the qualified immunity issue in light of Bell and of the
remand, and the district court denied qualified immunity to        C. The Effect of the Prior Panel Decision
Bair. Bair timely appeals.                                           Scott argues as a preliminary matter that Scott II, containing
                                                                   the statement that under Bell v. Johnson, the clearly
                                                                   established right at the time of the events underlying the
                                                                   instant case was to be free from adverse action which would
                                                                   have deterred a person of ordinary firmness from exercising
                                                                   First Amendment rights, was binding upon the district court
No. 03-2427                      Scott v. Churchill, et al.    7    8     Scott v. Churchill, et al.                    No. 03-2427

and is binding upon this court. He cites the doctrine of law of     Cir. 1995). “In essence, the mandate rule is a specific
the case, in particular the mandate rule, and a line of cases       application of the law-of-the-case doctrine.” United States v.
holding that where a party fails to seek reconsideration of an      Campbell, 168 F.3d 263, 265 (6th Cir. 1999). “The basic
opinion containing a misstatement of law or fact, she forfeits      tenet of the mandate rule is that a district court is bound to the
the right to argue that the opinion was erroneous in                scope of the remand issued by the court of appeals.” Id. The
subsequent proceedings.                                             scope of a remand is determined by examining the entire
                                                                    order or opinion, to determine whether and how the court of
   Bell nowhere makes the explicit statement that the               appeals intended to limit a remand. Id. at 266-68. In the
Thaddeus-X standard is to be used when judging whether              instant case, our opinion in Scott I had already determined
state officers’ actions violated clearly established law at the     that Scott’s retaliation claim against Bair could survive
time of the incidents in Bell, and by extension in this case.       summary judgment under the Thaddeus-X standard; had the
Instead, Bell indicates that the “shocks the conscience”            panel of our court meant in Scott II to hold that the Thaddeus-
standard is not to be used, relies on two cases, Gibbs v.           X standard was the appropriate one to be used in gauging
Hopkins, 10 F.3d 373 (6th Cir. 1993), and Newsom v. Norris,         qualified immunity, our panel presumably would have
888 F.2d 371 (6th Cir. 1989), as clearly establishing a             remanded with instructions to deny Bair’s motion and
prisoner’s right to be free from retaliation for exercising First   proceed to trial. Instead, the opinion as a whole makes clear
Amendment rights, and holds that the events at issue in Bell        that the district court is to reconsider Bair’s motion “[i]n light
— a search of a prisoner’s cell and confiscation of his legal       of Bell.” Scott II, 2003 WL 77208 at *2. “The issue
papers and medical diet snacks — meet the threshold level of        presented by Scott [the appellant in Scott II], and resolved in
retaliation established in Gibbs and Newsom. Bell, 308 F.3d         Bell, is the applicability of the ‘shocks the conscience’
at 608-13. Therefore, Scott II’s statement regarding Bell is        standard to prisoner First Amendment retaliation claims
not a correct description of Bell’s holding. Scott argues that      alleging conduct in 1995.” Id. at *1. Given the discretionary
the prior panel’s statement should nonetheless control when         nature of the law-of-the-case doctrine, the clear misstatement
assessing whether Bair’s actions were objectively                   of Bell’s holding by Scott II, and the failure of Bair’s
unreasonable in the face of clearly established law. Scott I        qualified immunity claim under Bell’s actual holding, as
held explicitly that Scott could survive summary judgment on        detailed below, we decline to consider Scott II’s statement as
the merits of his claim under the Thaddeus-X standard;              binding upon the district court below or on this court now.
therefore, if Scott II’s assertion that the Thaddeus-X standard
was the clearly established law of this circuit in 1988 is            Finally, Scott cites to cases which take a dim view of a
binding as law of the case, Bair’s claim of qualified immunity      party’s assertion that a previous panel opinion made a
necessarily fails, without further analysis.                        misstatement of law or fact in a subsequent appeal where no
                                                                    motion for reconsideration under Federal Rule of Appellate
  The law-of-the-case doctrine “posits that when a court            Procedure 40 was filed. See Campbell v. United States, 592
decides upon a rule of law, that decision should continue to        F.2d 309, 312 (6th Cir. 1979) (a party “may not ignore [Fed.
govern the same issues in subsequent stages in the same             R. App. P. 40]” and attempt to seek reconsideration of a
case.” Arizona v. California, 460 U.S. 605, 618 (1983).             ruling through subsequent litigation); United States v.
However, the doctrine merely “directs a court’s discretion, it      Gargotto, 510 F.2d 409, 412 (6th Cir. 1974) (“In the absence
does not limit the tribunal’s power.” Id.; see also Gillig v.       of [a petition under Fed. R. App. P. 40], those issues cannot
Advanced Cardiovascular Sys., Inc., 67 F.3d 586, 589-90 (6th        be re-considered”). These cases add little to Scott’s initial
No. 03-2427                      Scott v. Churchill, et al.     9    10   Scott v. Churchill, et al.                   No. 03-2427

law-of-the-case argument: Bair could have reasonably                 unconstitutional action was ultimately unsuccessful does not
believed that the case was being remanded for briefing to the        make Bair’s action any less unconstitutional. Circumstances
district court on the issue of qualified immunity in light of        outside Bair’s control stopped his attempt at retaliation from
Bell, and not in light of the less than accurate statement of        being perfected, but had Bair performed the exact same action
Bell’s holding in Scott II.                                          and the hearing officer not cleared Scott of misconduct
                                                                     charges, Scott would have faced disciplinary segregation or
D. Qualified Immunity Under Bell                                     the loss of good-time credits — which would necessarily be
                                                                     an actionable harm after Gibbs, where plaintiff made out a
  The district court in the instant case, after this court’s first   claim after having been kept in administrative segregation.
remand in Scott I, held that the clearly established law at the      Qualified immunity should be judged based on the actions of
time of the incident was the “shocks the conscience” standard.       the officer and the reasonably foreseeable consequences of
On appeal, Scott II noted that Bell had effectively overruled        those actions, not subsequent events outside of the officer’s
that legal conclusion, and remanded for consideration in light       control. The injury actually suffered goes to the merits of the
of Bell. Bell relied on two cases in concluding that behavior        claim, the sufficiency of which to survive summary judgment
short of that which “shocks the conscience” was clearly              is a settled question in this case.
established as unlawful in 1994, the time of the incidents in
Bell: Gibbs, 10 F.3d at 378-80, and Newsom, 888 F.2d at                 Particularly destructive to Bair’s claim that the type of
374-77. In attempting to distinguish his case from Gibbs and         adverse action he took against Scott is determinative is Cale
Newsom, Bair first argues that Gibbs and Newsom provide no           v. Johnson, 861 F.2d 943, 948-51 (6th Cir. 1988). Cale,
clear standard, and thus qualified immunity must be granted          which the Bell defendants relied upon, and which the Bell
— an argument clearly foreclosed by Bell. Bair then argues           court took pains to distinguish, held that an officer’s
that neither case is factually similar to his, focusing on the       unsuccessful attempt to frame a prisoner through the filing of
type of adverse action taken — the filing of a false                 a false misconduct charge in retaliation for complaining about
misconduct charge against the prisoner — rather than the             prison food was itself action “shocking to the conscience.”
protected conduct at issue. In Gibbs, plaintiff prisoner alleged     Although Bair acknowledges that Cale is “remotely on
that he was kept in administrative segregation as retaliation        point,” he argues that it is “easily distinguishable” because in
for his activities as a jailhouse lawyer, 10 F.3d at 378-80; in      Cale, false evidence was planted on the prisoner, and in Cale,
Newsom, plaintiff prisoners alleged that they had not been           the prisoner was taken to administrative segregation pending
reappointed to their positions as inmate advisors in retaliation     his hearing. Appellant’s Br. at 19. Bair’s attempt to
for complaints they had made about the Chairman of the               distinguish Cale factually is unconvincing — after Hope v.
Disciplinary Board, 888 F.2d at 374-77. In attempting to             Pelzer, 536 U.S. 730, 741 (2002), the distinction between
distinguish the situation at bar from Gibbs and Newsom, Bair         attempting to frame an inmate for a misconduct charge by
argues that Scott suffered no tangible harm. But this                planting evidence on his person and attempting to frame an
argument is misguided: Bair could not know at the time he            inmate by giving false testimony is one without a difference.
committed the unconstitutional action, filing a misconduct           (“[O]fficials can still be on notice that their conduct violates
charge, that Scott would be exonerated of that charge. That          established law even in novel factual circumstances.”) Id. As
Scott may have suffered less harm than other plaintiffs may          to Cale’s detention in administrative segregation, once again,
be relevant in determining whether or not he has a claim on          Bair’s argument goes to the harm Scott suffered, and thus to
the merits of a constitutional violation, but that Bair’s            the ultimate determination of the merits of his claim, and not
No. 03-2427                      Scott v. Churchill, et al.   11    12   Scott v. Churchill, et al.                   No. 03-2427

to whether Bair’s actions were unconstitutional in light of         provides independent verification, that Bair deliberately
clearly established law. In Cale itself, our focus was not on       framed Scott through false testimony, and that Bair did so
the brief detention in administrative segregation which Cale        with the specific intent of deterring Scott from asserting his
suffered, but instead upon the “danger of further loss of           First Amendment rights of grievance.
liberty through disciplinary detention and through the loss of
good-time credit as a result of the charges filed against him.”       Under Gibbs and Newsom, which Bell directs this court to
861 F.2d at 949-50; see also id. at 950-51 (in summation,           look to, and under Cale as well, Scott’s right to be free from
noting only that Cale “was subject to the possibility of            retaliation, in the form of the issuance of a false major
disciplinary sanctions and a resulting loss of liberty as a         misconduct ticket, against the exercise of his First
consequence of the alleged actions,” and not adverting to           Amendment rights was clearly established, and Bair is not
administrative segregation). Cale, decided in 1988, clearly         entitled to qualified immunity.
establishes that the mere potential threat of disciplinary
sanctions is sufficiently adverse action to support a claim of      E. Other Issues Raised By the Parties
retaliation. Even had the false misconduct charge been
sustained against Cale, however, that case would still clearly         Bair argues on the last full page of his brief that is he is
establish that the false issuance of a misconduct charge is         additionally entitled to qualified immunity on his conspiracy
unconstitutional retaliation; that Bair did not do a particularly   claim, which he also seems to argue was dismissed by the
good job of framing Scott does not make his actions any less        district court in an earlier stage of the litigation and never
culpable, and events outside of his control (i.e., the hearing      reinstated by the circuit court. See Scott II, 2003 WL 77208,
officer’s ultimate determination) do not vitiate the “the danger    at *1-*2 (noting civil conspiracy claim dismissed on basis
of further loss of liberty” to which Bair subjected Scott. See      other than qualified immunity but reversing district court’s
id. at 949.                                                         decision without limitation); Scott v. Bair, No. 1:95 cv 571,
                                                                    slip op. at 10-11 (W.D. Mich. Mar. 29, 2001), J.A. at 179,
   Despite Cale’s clear applicability, Bair claims that Brown       188-89 (dismissing plaintiff’s conspiracy claim on grounds
v. Crowley, 312 F.3d 782 (6th Cir. 2002), was the first case        other than qualified immunity). However, in denying
that would have given warning that his behavior was                 qualified immunity, the magistrate judge’s report and
unconstitutional, and Bair notes the vigorous dissent in that       recommendation indicated that the conspiracy claims would
case, arguing that as judges disagree on whether certain            proceed to trial. J.A. at 362. This report was adopted by the
behavior was unconstitutional, he cannot be expected to know        district court without comment on the conspiracy claim. Scott
that such behavior was unlawful. The fatal flaw in this             v. Churchill, No. 1:95 cv 571, slip op. at 2 (W.D. Mich. Oct.
argument, however, is that the Brown case did not contain any       3, 2003), J.A. at 466-67. Since Bair is not entitled to
of the specific evidence of retaliatory motive and deliberately     qualified immunity on Scott’s First Amendment claim, it
falsified charges that Scott presents in the instant case, a fact   stands to reason he is not entitled to qualified immunity on
noted even by the Brown dissent in distinguishing Cale. See         Scott’s conspiracy claim. As to whether the district court
Brown, 312 F.3d at 799 (Rosen, J., dissenting) (distinguishing      properly considered Scott’s conspiracy claim to be reinstated,
Cale from Brown because Cale “feature[d] direct evidence of         that issue is controlled by the mandate rule described above:
retaliatory conduct” and of the prison official’s “active[]         given that the Scott II court reversed the entire decision and
abuse[ of] his position of authority” by manufacturing              remanded to the district court for reconsideration, the district
evidence). Here, of course, Scott asserts, and Thomas               court did not abuse its discretion in reconsidering Scott’s
No. 03-2427                      Scott v. Churchill, et al.   13

conspiracy claim. If the initial reasons for dismissing the
conspiracy claim are not mitigated by the allowance of the
First Amendment claim, Bair is free to again move for
summary judgment on the merits of the conspiracy claim.
   Finally, Scott claims that Bair’s appeal is frivolous and
vexatious, and he requests damages and costs because this
appeal presents the same issue as Scott II with no change in
the law or facts. This is, on its face, a difficult contention to
support. While Bell had been decided before Scott II was
argued, the Scott II court clearly wished to have the benefit of
the district court’s consideration of qualified immunity in
light of Bell before a definitive circuit court pronouncement
on the issue. The district court having considered qualified
immunity, Bair now appeals alleging legal error in that
consideration. While the legal issue may be the same in the
broader sense — qualified immunity — the district court’s
decision clearly breaks new ground from Scott II, and Bair is
entitled to appeal from that decision, especially in light of the
policy considerations underlying qualified immunity.
                    III. CONCLUSION
  For the foregoing reasons, we AFFIRM the district court’s
judgment.
