               Not for Publication in West's Federal Reporter

          United States Court of Appeals
                      For the First Circuit


No. 08-1322

                          DARREN F. STARR,

                       Plaintiff, Appellant,

                                    v.

                        DENIS DUBE, ET AL.,

                      Defendants, Appellees.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF NEW HAMPSHIRE

         [Hon. Steven J. McAuliffe, U.S. District Judge]


                                 Before

                        Lynch, Chief Judge,
              Torruella and Boudin, Circuit Judges.



     Darren Starr on brief pro se.
     Glenn A. Perlow, Assistant Attorney General, and Kelly A.
Ayotte, Attorney General, on brief for appellees.



                            June 24, 2009
          Per Curiam.      In his 42 U.S.C. § 1983 suit, pro se New

Hampshire state inmate Darren Starr sued certain prison employees

or officials, alleging that a false disciplinary charge was filed

against him and that a destructive search was made of his cell in

retaliation for his exercise of First Amendment rights.            In an

Order   dated   December   7,   2007,   the   district    court   granted

defendants' motion for summary judgment on the retaliation claim

based on the disciplinary charge.       Subsequently, a trial was held

on the cell search retaliation claim, and, on February 6, 2008, the

jury returned a special verdict against Starr.           On February 7,

2008, the district court issued judgment in defendants' favor, and

Starr filed this appeal.

          On appeal, Starr objects to the district court's summary

judgment decision and to certain of its trial-related rulings.        We

affirm the district court's judgment in favor of the defendants for

the following reasons.

          1. Starr objects to the district court's pretrial ruling

denying his request for a subpoena to obtain the testimony of a

certain corrections officer at trial.         He also    argues that the

district court erroneously instructed the jury as to his burden of

proof on one element of his retaliation claim.            After careful

review of the record and the parties' appellate contentions,

however, we conclude that the district court did not abuse its

discretion in denying Starr's motion for a subpoena, or err in the


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jury instruction it gave.     See McDonald v. Hall, 610 F.2d 16, 18

(1st Cir. 1979) ("Plaintiff must prove that he would not have been

transferred 'but for' the [retaliatory] reason.").

            2.   Starr contends that the district court's summary

judgment decision was erroneous.    We review that decision de novo,

evaluating whether there is any genuine issue as to a material fact

and whether defendants were entitled to judgment as a matter of

law.     Scottsdale Ins. Co. v. Torres, 561 F.3d 74, 77 (1st Cir.

2009).

            The disciplinary charge against Starr was dismissed about

a week after it was filed.       At the disciplinary hearing, the

hearing officer agreed with Starr's argument that the investigation

of the charge had been improper.    Starr received no discipline or

other sanction due to the filing of the disciplinary charge.

            Based on the above undisputed facts, the district court

held, as a matter of law, that the adverse act alleged was "de

minimis" and thus did not give rise to a cognizable retaliation

claim under § 1983.   The court relied on the reasoning in Morris v.

Powell, 449 F.3d 682 (5th Cir.), cert. denied, 549 U.S. 1038

(2006), where the circuit court adopted the standard used in other

circuits for evaluating the sufficiency of a particular adverse act

alleged by a prisoner raising a retaliation claim.        Under that

standard, an adverse act is not de minimis if it "would chill or

silence a person of ordinary firmness from future First Amendment


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activities."      Applying the standard, the Fifth Circuit found that

certain adverse acts would be de minimis--acts that cause an inmate

only   a   "few    days   of    discomfort,"   impose    "a    [single]   minor

sanction," or impose an otherwise constitutional restriction on the

inmate.    449 F.3d at 685-86 (mentioning the facts in that case and

prior circuit cases).          As the district court pointed out, filing a

disciplinary charge that is dismissed constitutes an adverse act

that is "less substantial than the least substantial de minimis act

identified by the Morris court."

            On appeal, Starr accepts that his retaliation claim must

be premised on an adverse act of a kind that would deter persons of

"ordinary firmness" from exercising their constitutional rights in

the future.       He argues that the filing of the disciplinary charge

against him met that standard because it exposed him to maximum

penalties that included punitive segregation and a loss of good

time credits.       There is case law in his favor.           Brown v. Crowley

("Brown"), 312 F.3d 782, 789 (6th Cir. 2002) (majority decision),

cert. denied, 540 U.S. 823 (2003) (a reasonable jury could find

that filing a retaliatory charge exposing an inmate to a "risk of

significant sanctions" could deter persons of "ordinary firmness"

from exercising their rights); Zarska v. Higgins, 171 Fed. Appx.

255,   259-60     (10th   Cir.    2006)   (unpublished   decision)     (filing

retaliatory disciplinary proceedings "would chill a person of

ordinary firmness" from future exercise of his or her rights)


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(citation omitted); cf. Dixon v. Brown, 38 F.3d 379, 379-80 (8th

Cir. 1994) (a prisoner who has presented evidence that a "false"

disciplinary charge was filed for retaliatory reasons does not have

to "show a separate, independent injury").

           We do not find the reasoning in the above cases to be

persuasive on the facts of this case.              As a prison policy directive

contained in the record indicates, Starr was entitled to several

opportunities to present his version of the facts to neutral

decisionmakers.       Indeed,      at     his      disciplinary   hearing,    he

successfully obtained dismissal of the charge against him after

pointing out the irregularity in the prison's investigation of the

charge.    Starr has not contended that it would be futile for

inmates   at   his   prison   to   try        to   defend   themselves   against

retaliatory disciplinary charges.

           The procedures in the prison policy directive serve to

protect inmates from the threat of punishment that is posed by a

retaliatory disciplinary charge.          On the facts here, we cannot say

that a reasonable fact-finder could conclude that inmates of

"ordinary firmness" would be deterred from continuing to exercise

their constitutional rights merely because of the filing of a

disciplinary charge carrying potentially severe sanctions.                   See

Pittman v. Tucker, 213 Fed. Appx. 867, 871-72 (11th Cir. 2007)

(unpublished per curiam) (the court "could not conclude that a

person of ordinary firmness would be deterred from exercising his


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First Amendment rights" where inmates could defend themselves

against a charge before being disciplined and there was no evidence

or claim that it would be futile to attempt a defense); accord

Brown, supra, 321 F.3d at 801-02 (dissenting opinion by Rosen,

D.J., sitting by designation).    See also Morris, supra; Gill v.

Tuttle, 93 Fed. Appx. 301, 303-04 (2d Cir. 2004) (unpublished) (to

survive a summary judgment motion, an inmate must allege an adverse

action that imposes a "substantial" impact on an inmate) (by

implication); Bridges v. Gilbert, 557 F.3d 541, 555 (7th Cir. 2009)

(a "single [allegedly unjustified] retaliatory charge that is later

dismissed is insufficient to serve as the basis of a § 1983

action").

            Affirmed.




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