
USCA1 Opinion

	




        February 9, 1996        [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                            ____________________        No. 95-2194                                  RONALD L'HEUREUX,                                Plaintiff, Appellant,                                          v.                                 LEO ASHTON, ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                    [Hon. Ronald R. Lagueux, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                 Selya, Cyr and Lynch,                                   Circuit Judges.                                   ______________                                 ____________________            Ronald L'Heureux on brief pro se.            ________________                                 ____________________                                 ____________________                      Per Curiam.  Appellant Ronald  L'Heureux, an inmate                      __________            at the Adult Correctional  Institution in Rhode Island, filed            a  42 U.S.C.   1983 action in Rhode Island's federal district            court, along with a motion to proceed in forma pauperis.  The                                                  _________________            complaint,  besides  naming  the   parties  and  citing   the            jurisdictional bases of the  action, contains only conclusory            references  to   the  nature  of  appellant's   claims.    It            essentially alleges that (1) defendants (various correctional            officials)  manufactured   disciplinary  proceedings  against            appellant,  (2)  appellant spent  120  days  in lock-up,  (3)            appellant was denied reclassification,  and (4) at least some            of these actions were taken for the purpose of discrimination            and  retaliation.                      The district court denied the request to proceed in                                                                       __            forma  pauperis, stating on the back  of the application that            _______________            "the  allegations are  insufficient  to set  forth a  federal            cause of action."  The next day, judgment was entered for the            defendants.  Thus, the  only reason given for dismissing  the            complaint is the above-quoted language.   We construe this as            a  dismissal under 28 U.S.C.   1915(d).  Appellant then filed            a motion for relief from judgment and to amend the complaint,            and  a motion to reconsider  the denial of  in forma pauperis                                                        _________________            status.   The amended  complaint added allegations concerning            the events  upon  which  appellant  based the  action.    The            district court denied  these motions.  This appeal ensued and                                         -2-            appellant  now  requests  permission  to   proceed  in  forma                                                                _________            pauperis on appeal.            ________                      Despite its brevity, the complaint should not  have            been dismissed under   1915(d) without first giving appellant            notice  of the deficiency and  an opportunity to  amend.  See                                                                      ___            Neitzke v. Williams, 490 U.S. 319, 329-30 (1989) (emphasizing            _______    ________            the  importance of  providing  opportunities  for  responsive            pleadings  to   indigent   litigants  commensurate   to   the            opportunities accorded similarly situated  paying litigants);            Street  v. Fair,  918  F.2d 269,  273  (1st Cir.  1990)  (per            ______     ____            curiam)  (where the complaint's  deficiency conceivably could            be  cured by amendment, an indigent plaintiff must be given a            chance  to  supplement  his  or her  allegations  before  any            dismissal  on  the merits).    Particularly  in view  of  the            allegations  in the  amended  complaint, we  cannot say  that            appellant will be unable to state a cognizable claim.                      In  the  amended complaint,  appellant specifically            alleges  that  prison officials  retaliated  against him  for            acting  as a jail-house lawyer.   This court  and others have            recognized such  claims.   See, e.g., McDonald  v. Hall,  610                                       ___  ____  ________     ____            F.2d  16, 18 (1st Cir.  1979) (inmate who  asserted that as a            result  of his activities as a jail-house lawyer on behalf of            himself  and others,  he  was transferred  to another  prison            stated a claim even  though the allegations were conclusory);            Gibbs   v.  Hopkins,  10  F.3d   373,  378  (6th  Cir.  1993)            _____       _______                                         -3-            (government  official  may  not   retaliate  by  the  use  of            segregation   against   an   inmate   who   engages  in   the            constitutionally protected  conduct of assisting  others as a            jail-house  lawyer); Rizzo  v. Dawson,  778 F.2d  527, 531-32                                 _____     ______            (9th Cir. 1985) (the assertion  that an inmate's transfer was            in retaliation for his  work as a jail-house lawyer  stated a            claim  for  violation  of   the  First  Amendment  where  the            retaliatory  act  did  not  advance  legitimate institutional            goals).  Although the chronology still is vague so that it is            not   clear  whether  appellant's  activities  triggered  the            disciplinary  proceedings,  such  an  omission  goes  to  the            failure to state a claim, not frivolousness.  See Leonardo v.                                                          ___ ________            Moran, 611 F.2d 397, 398 (1st Cir. 1979) (plaintiff failed to            _____            state  a   1983 claim for retaliation based on the conclusory            allegation that due to earlier filed grievances in the United            States district court, he was transferred to maximum security            and  denied access to  the courts;  plaintiff failed  to show            that  "but for"  the  grievances,  he  would  not  have  been            transferred).     Appellant's   allegations   that   he   was            transferred to  segregation for the possession  of legal mail            and for  his activities  as a jail-house  lawyer sufficiently            implicate    the   First    Amendment   and    overcome   the            characterization of the complaint as frivolous.                      We therefore grant appellant's motion to proceed in                                                                       __            forma pauperis  on appeal,  summarily vacate the  judgment of            ______________                                         -4-            the district court, and remand for  further proceedings.  See                                                                      ___            Local Rule 27.1.   The discussion herein alerts  appellant to            the elements  of a viable  retaliation claim.   Appellant may            not depend  merely on  vague  and general  allegations.   See                                                                      ___            Gooley v. Mobil  Oil Corp.,  851 F.2d 513,  514-15 (1st  Cir.            ______    ________________            1988).                      Vacated and remanded.                      ____________________                                         -5-
