                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 18-2360
                         ___________________________

                                 Guadalupe Gonzalez

                         lllllllllllllllllllllPlaintiff - Appellant

                                            v.

                                        R. Bendt

                        lllllllllllllllllllllDefendant - Appellee

                                     ____________

                     Appeal from United States District Court
                   for the District of South Dakota - Sioux Falls
                                    ____________

                            Submitted: February 13, 2020
                              Filed: August 19, 2020
                                  ____________

Before LOKEN, BENTON, and KELLY, Circuit Judges.
                           ____________

LOKEN, Circuit Judge.

       Guadalupe Gonzalez, a former federal inmate, filed a series of grievances after
he was transferred to the Federal Prison Camp in Yankton, South Dakota (“FPC
Yankton”), objecting to being denied permission to possess an aviation manual he
had been allowed to have at his prior correction facility. In 2016, Gonzalez filed this
pro se damages action asserting equal protection and First Amendment claims arising
out of these grievances against multiple FPC Yankton officials. In an order
Gonzalez did not appeal, the district court1 dismissed all but one claim -- that
Gonzalez’s First Amendment rights were violated when R. Bendt, an FPC Yankton
Correctional Counselor, retaliated against Gonzalez for filing grievances by denying
him prison grievance forms. Gonzalez filed the action under 42 U.S.C. § 1983, but
that statute applies only to constitutional violations by state officials. Therefore, the
district court interpreted the action as one brought against Bendt under Bivens v. Six
Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).

       Bendt filed relevant grievance materials and moved for summary judgment,
arguing (i) there is no implied private right of action under Bivens for a First
Amendment violation, and (ii) Bendt is entitled to qualified immunity because he did
not violate Gonzalez’s First Amendment rights and the right asserted was not clearly
established. The district court granted summary judgment, concluding that a Bivens
remedy should not be implied for retaliatory denials of administrative remedies.
Gonzalez appeals. Reviewing the grant of summary judgment de novo, Lewis v.
Jacks, 486 F.3d 1025, 1027 (8th Cir. 2007), we conclude summary judgment was
proper because Gonzalez failed to prove an essential element of a First Amendment
retaliation claim -- that denial of a few grievance forms would chill an inmate of
ordinary firmness from filing future grievances. We therefore affirm.

                                   I. Background

      The Bureau of Prisons (“BOP”) has a four-tiered administrative procedure for
inmate grievances. See 28 C.F.R. § 542.10 et seq. First, the inmate requests an
Informal Resolution Form (“BP-8") and attempts to resolve his grievance informally
with a correctional counselor, here, defendant Bendt. § 542.13. Second, if the


      1
       The Honorable Karen E. Schreier, United States District Judge for the District
of South Dakota.

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grievance remains unresolved, the inmate may file a formal Request for
Administrative Remedy (“BP-9") with the prison Warden. § 542.14. Third, if
unsatisfied with the Warden’s response, the inmate may file a Regional Office
Administrative Remedy Appeal (“BP-10") with the Regional Director. § 542.15.
Finally, if still unsatisfied, the inmate may file a Central Office Administrative
Remedy Appeal (“BP-11") to the BOP Office of the General Counsel. Id.

      This appeal concerns grievances filed by Gonzalez in 2014. The Complaint
alleges that, on June 3, he submitted to Bendt a BP-8 form alleging discriminatory
denial of his aviation manual. The grievance was not informally resolved, and
Gonzalez filed a BP-9 form on June 19. The Warden responded on June 24
explaining why Gonzalez was not allowed to possess the aviation manual at FPC
Yankton. Gonzalez filed a BP-10 form on July 2. The Regional Director responded
on July 11, agreeing with the Warden’s decision and offering additional explanation.
The Complaint alleges that Bendt refused to provide a BP-11 form for the final
administrative step in this grievance.

       The Complaint alleges that, on July 10, Gonzalez “was forced to file a BP-9"
with the Warden because Bendt “refused to supply him with [a BP-8] form, barring
him from the administrative remedy process altogether.” Due to pressure from the
Warden, the Complaint alleges, Bendt “succumbed to Mr. Gonzalez’s request.” On
July 14, Gonzalez filed a BP-8 grievance form alleging retaliatory removal from his
FPC Yankton job assignment “without any reason or justification.” Bendt responded
that “detail supervisors have the right to assign inmates to any area they so choose.”
Gonzalez filed a BP-9 appeal form; the Warden denied the grievance on July 31 for
the same reason, stating there was no evidence of racial discrimination but failing to
address why the reassignment was necessary absent misconduct. Gonzalez filed a
BP-10 on August 14. The Regional Director responded on September 5, stating that
the Warden’s response adequately addressed Gonzalez’s concerns, and Gonzalez had
provided “no additional evidence . . . that staff acted unprofessionally or contrary to

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policy.” At this point, the Complaint alleges, Bendt “again refused to provide” a BP-
11 form. Gonzalez did not appeal the Regional Director’s decision. He then filed this
damage action against Bendt for retaliatory denials of prison grievance forms in
violation of the First Amendment.

                                    II. Discussion

        We have repeatedly held that “[t]he filing of a prison grievance, like the filing
of an inmate lawsuit, is protected First Amendment activity.” Lewis, 486 F.3d at
1029; see Sprouse v. Babcock, 870 F.2d 450, 452 (8th Cir. 1989). Therefore, “actions
taken in retaliation for an inmate’s filing of a grievance are actionable under 42
U.S.C. § 1983.” Nelson v. Shuffman, 603 F.3d 439, 450 (8th Cir. 2010). However,
the Supreme Court does not favor expanding the analogous Bivens remedy. See
Ziglar v. Abbasi, 137 S. Ct. 1843, 1857 (2017). The Court has expressly stated it has
not extended Bivens to First Amendment claims. See Reichle v. Howards, 566 U.S.
658, 663 n.4 (2012); but cf. Hartman v. Moore, 547 U.S. 250, 256 (2006). We leave
for another day the important question whether Bivens provides a remedy for First
Amendment claims, an issue we have not previously decided. Rather, concluding that
Gonzalez has failed to establish a claim of First Amendment retaliation under § 1983,
if that statute applied, we will assume without deciding there is an analogous Bivens
cause of action for First Amendment retaliation claims and affirm on this alternate
ground. See George v. Rehiel, 738 F.3d 562, 585 n.24 (3d Cir. 2013).

       To establish a claim for First Amendment retaliation, Gonzalez must prove “(1)
he engaged in a protected activity, (2) [Bendt] took adverse action against him that
would chill a person of ordinary firmness from continuing in the activity, and (3) the
adverse action was motivated at least in part by the exercise of the protected activity.”
Spencer v. Jackson County, 738 F.3d 907, 911 (8th Cir. 2013) (quotation omitted).
The ordinary-firmness test is designed to weed out trivial matters from substantial
violations of the First Amendment. Santiago v. Blair, 707 F.3d 984, 992 (8th Cir.

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2013). “The test is an objective one, not subjective. The question is . . . . [w]hat
would a person of ‘ordinary firmness’ have done in reaction to the [adverse action]?”
Garcia v. City of Trenton, 348 F.3d 726, 729 (8th Cir. 2003). Summary judgment is
appropriate if there is insufficient evidence the adverse action would deter a person
of ordinary firmness from continuing to engage in First Amendment protected
activity. Id. We consider Gonzalez’s actions in response to Bendt’s alleged
retaliation as evidence of what a person of ordinary firmness would have done. See
Naucke v. City of Park Hills, 284 F.3d 923, 928 (8th Cir. 2002) (“[T]he record
reflects . . . [plaintiff] continued to speak out . . . on numerous occasions.”)

       Gonzalez’s Complaint alleged that Bendt’s retaliatory denial of requests for
BP-8 and BP-11 forms “barr[ed] him from the administrative remedy process
altogether.” Bendt’s motion for summary judgment argued that his “alleged denial
of two administrative forms and delay in providing informal resolution forms does
not rise to an adverse action sufficient to chill a person of ordinary firmness.” Bendt
argued these were isolated incidents, and he is not alleged to have threatened
permanent access denial. Moreover, denial or delay is of little consequence because
inmates are only required to exhaust available remedies before seeking judicial relief.
Bendt’s brief cited numerous cases holding that “[t]he denial of grievances is not an
‘adverse action’ for retaliation purposes.” Owens v. Coleman, 629 F. App’x 163, 167
(3d Cir. 2015) (unpublished). In his Response, relying entirely on the fact allegations
in his Complaint, Gonzalez argued that Bendt’s denial of administrative forms was
“an adverse action sufficient to chill the Plaintiff of ordinary firmness from
continuing to use the administrative remedy process as a matter of law.” As there was
a denial of administrative remedy forms, “Spencer [v. Jackson County] is applicable.”

       In Spencer, we reversed the grant of summary judgment dismissing an inmate’s
First Amendment retaliation claims. 738 F.3d 907. Plaintiff alleged that defendants’
adverse actions included “obstructing [an inmate’s] access to the grievance process”
by “delaying or refusing him requested forms” and “telling him that he would not

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receive any more grievance forms” because defendants “were irritated by his use of
the grievance process.” Id. at 913. In remanding for further proceedings, we did not
address the issue whether denial of requested grievance forms would “chill a person
of ordinary firmness from continuing in the activity.” Thus, Spencer does not stand
for the proposition that the denial of administrative grievance forms is an adverse
action that will support a First Amendment retaliation claim “as a matter of law.”

       Undisputed facts in the summary judgment record establish that Bendt’s
alleged retaliatory denial of a request for a BP-8 form did not “bar [Gonzalez] from
the administrative remedy process altogether.” In both the 2014 grievances at issue,
Gonzalez submitted BP-8 forms and Bendt completed the informal resolution step in
the grievance process. Any temporary delay may have inconvenienced Gonzalez but
did not prevent him from submitting BP-9 and BP-10 forms appealing Bendt’s failure
to accommodate the aviation manual and job assignment grievances. Both grievances
were denied on the merits by the Warden and then by the Regional Director. In
submitting the second grievance, Gonzalez initially ignored the BP-8 step in the
grievance, alleging Bendt refused to provide a BP-8 form. Consistent with BOP
policy, Gonzalez was allowed to file the BP-9 grievance form directly with the
Warden, the informal resolution step was then completed, and Gonzalez appealed
Bendt’s job assignment ruling to the Warden and then to the Regional Director. The
job assignment grievance was denied on the merits, and the Warden explained there
was no evidence Bendt’s refusal to provide a BP-8 form was racially motivated.

      In the second grievance, Gonzalez did not even allege that Bendt refused to
provide a BP-8 form because he was “irritated by [Gonzalez’s] use of the grievance
process,” as in Spencer, which might evidence an intent to chill continuing use of the
grievance process. Focusing initially on Gonzalez’s actions in response to Bendt’s
alleged retaliation, the summary judgment record establishes that Gonzalez not only
pursued the two grievances through informal resolution and two levels of
administrative appeal, he also used the prison grievance procedure several more times

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after these incidents. There is no evidence supporting Gonzalez’s conclusory
allegations that Bendt denied him access to BP-11 forms to appeal two of his
grievances to the BOP Office of the General Counsel in Washington, D.C. As Bendt
argued to the district court, denial or delay in providing forms for the final step in the
grievance process is of little consequence because inmates are only required to
exhaust available remedies before seeking judicial relief. See 42 U.S.C. § 1997e(a);
Ross v. Blake, 136 S. Ct. 1850, 1860 (2016); Miller v. Norris, 247 F.3d 736, 740 (8th
Cir. 2001). Like the denial of the grievance itself, this is a minor interference with
an inmate’s access to the administrative remedy process that would not deter an
inmate of ordinary firmness from continuing to exercise his First Amendment right
to file grievances and then to seek judicial remedies.

       For these reasons, we conclude that an inmate of ordinary firmness would not
be chilled from continuing to seek redress for his grievances because an official
responsible for an early step in the BOP process rejects his BP-8 form or fails to
provide access to a grievance appeal form. The record establishes that the BOP’s
flexible four-step process allowed Gonzalez to have his initial grievance decided on
the merits and then to submit a second grievance that initially bypassed the informal
resolution step, which was also decided on the merits. There is no evidence that other
inmates would not be granted comparable procedural access to BOP administrative
grievance remedies. Accordingly, Gonzalez failed to establish a claim of First
Amendment retaliation, even assuming Bivens provides a damages action remedy for
that claim.

      The judgment of the district court is affirmed.
                     ______________________________




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