           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                         2    Muhammad v. Close                            No. 02-1043
        ELECTRONIC CITATION: 2004 FED App. 0265P (6th Cir.)
                    File Name: 04a0265p.06                                 which reversed our decision affirming an award of summary
                                                                           judgment in favor of Mark Close, a corrections officer, on a
                                                                           claim brought by Shakur Muhammad, an inmate, pursuant to
UNITED STATES COURT OF APPEALS                                             42 U.S.C. § 1983. Muhammad v. Close, 124 S. Ct. 1303
                                                                           (2004). As explained below, we REVERSE the judgment of
                  FOR THE SIXTH CIRCUIT                                    the district court and REMAND for further proceedings.
                    _________________
                                                                                                          I
 SHAKUR MUHAMMAD , a/k/a      X
 JOHN E. MEASE ,               -                                             Muhammad’s section 1983 claim alleges that while he was
                               -                                           incarcerated at the Standish Maximum Correctional Facility,
          Plaintiff-Appellant,                                             corrections officer Close violated his First Amendment rights
                               -  No. 02-1043
                               -                                           by charging him with threatening behavior, which
         v.                     >                                          necessitates pre-hearing lockup, in retaliation for prior
                               ,                                           lawsuits and grievance proceedings that Muhammad had
                               -                                           instituted against Close. The sole relief that Muhammad
 MARK CLOSE ,                  -                                           seeks is $10,000 in compensatory and punitive damages “for
        Defendant-Appellee. -                                              the physical, mental, and emotional injuries sustained” during
                               -                                           the six days of pre-hearing detention mandated by the charge
                              N                                            of threatening behavior.
                On Remand from the
            United States Supreme Court.                                      In our initial decision, we relied upon Huey v. Stine,
                                                                           230 F.3d 226 (6th Cir. 2000), in concluding that
             Decided and Filed: August 11, 2004                            Muhammad’s section 1983 claim was barred by the rule
                                                                           announced in Heck v. Humphrey, 512 U.S. 477 (1994). The
        Before: MARTIN and MOORE, Circuit Judges;                          Heck rule provides that “where success in a prisoner’s §1983
                 WISEMAN, District Judge.*                                 damages action would implicitly question the validity of
                                                                           conviction or duration of sentence, the litigant must first
                       _________________                                   achieve favorable termination of his available state, or federal
                                                                           habeas, opportunities to challenge the underlying conviction
                           OPINION                                         or sentence.” Muhammad, 124 S. Ct. at 1304 (discussing
                       _________________                                   Heck). Subsequently, in Edwards v. Balisock, 520 U.S. 641
                                                                           (1997), the Supreme Court applied the Heck rule “in the
  BOYCE F. MARTIN, JR., Circuit Judge. This case returns                   circumstances of a §1983 action claiming damages and
to us on remand from the United States Supreme Court,                      equitable relief for a procedural defect in a prison’s
                                                                           administrative process, where the administrative action taken
                                                                           against the plaintiff could affect credits toward release based
    *                                                                      on good-time served.” Muhammad, 124 S. Ct. at 1304
     The Hon orable T homas A. W iseman, Jr., United States District       (discussing Edwards). In Huey, a panel of this Court stated
Judge for the M iddle District o f Ten nessee , sitting by de signation.

                                   1
No. 02-1043                        Muhammad v. Close          3    4      Muhammad v. Close                           No. 02-1043

that “the Heck/Edwards doctrine [applies] generally to                                            II
prevent a prisoner found guilty in a prison disciplinary
hearing from using §1983 to collaterally attack the hearing’s         In considering the district court’s award of summary
validity.” 230 F.3d at 228-29 (adopting the reasoning of           judgment, we employ de novo review. Graham ex rel. Estate
several unpublished opinions from our circuit). In this case,      of Graham v. Cty. of Washtenaw, 358 F.3d 377, 382 (6th Cir.
our conclusion that Heck barred Muhammad’s section 1983            2004). In prior rulings in this case, the district court held that
claim flowed directly from Huey, which we were bound to            Muhammad had properly pleaded all the elements of a First
follow.                                                            Amendment retaliation claim, which are:

   In reversing our decision, however, the Supreme Court               (1) the plaintiff engaged in protected conduct; (2) an
ruled that the “precedent” upon which we had relied – i.e.,            adverse action was taken against the plaintiff that would
Huey – was wrongly decided. Muhammad, 124 S. Ct. at                    deter a person of ordinary firmness from continuing to
1306. According to the Court, the “view expressed” in Huey             engage in that conduct; and (3) there is a causal
“that Heck applies categorically to all suits challenging prison       connection between elements one and two--that is, the
disciplinary proceedings” is “mistaken[.]” Muhammad, 124               adverse action was motivated at least in part by the
S. Ct. at 1306. The Court clarified that “the incarceration that       plaintiff's protected conduct.
matters under Heck is the incarceration ordered by the
original judgment of conviction, not special disciplinary          Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999).
confinement for infraction of prison rules.” Id. at 1304, n.1.
It then reasoned that because determinations made in prison           Close conceded that the first element was satisfied,
disciplinary proceedings “do not as such raise any implication     inasmuch as Muhammad has a right to access the courts.
about the validity of the underlying conviction, and although      Close argued, however, that he was entitled to summary
they may affect the duration of time to be served (by bearing      judgment because there was insufficient evidence to satisfy
on the award or revocation of good-time credits) that is not       the second and third elements. Where a defendant shows a
necessarily so.” Id. at 1306. Because in this case “no good-       lack of evidence on any particular element of the claim at
time credits were eliminated by the prehearing action              issue, the plaintiff has the burden of offering affirmative
Muhammad called into question,” the Court held that                evidence from which a reasonable fact finder could find in his
“[Muhammad’s] §1983 suit challenging this action could not         favor. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
therefore be construed as seeking a judgment at odds with his      Corp., 475 U.S. 574, 586-87 (1986). Such evidence is
conviction or with the State’s calculation of time to be served    required to be viewed in the light most favorable to the
in accordance with the underlying sentence.” Id. Having            plaintiff. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-
overruled the portion of Huey upon which our previous              52 (1986). Thus, any direct evidence offered by the plaintiff
decision relied, the Court reversed our decision finding that      in response to a summary judgment motion must be accepted
Muhammad’s section 1983 claim was barred by Heck, and              as true. Adams v. Metiva, 31 F.3d 375, 382 (6th Cir. 1994).
remanded this case for our “consideration of summary
judgment on the ground adopted by the District Court.” Id.           The magistrate recommended that Close’s motion for
at 1307.                                                           summary judgment be granted, and the district court agreed.
                                                                   The district court’s decision was based solely upon its
                                                                   determination that Muhammad had failed to produce
No. 02-1043                       Muhammad v. Close            5   6      Muhammad v. Close                           No. 02-1043

sufficient evidence to satisfy the third element, causation.               in his cell and than [sic] rush him and act like he
The court held that the temporal proximity between the                     accidentally got killed while trying to resist him.
protected conduct and the alleged adverse action was weak
and that there was no “direct evidence of animosity, such as           5.) I wrote a kite to the unit case manager Wendy Reetz
statements made by the defendant, that the Court would be                  and told her what I had seen and heard regarding the
required to take as true.” In the district court’s view,                   officers [sic] threat to kill Mease-X.
Muhammad was simply “ask[ing] [the court] to trust his
hunch that the defendant’s adverse action against him was              6.) Case manager Reetz came to my cell and told me
motivated by his past lawsuits,” which is “insufficient to                 that if I did not minded [sic] my own business, I
defeat a summary judgment motion . . . .”                                  would be getting the same treatment.

  As Muhammad maintains, however, in reaching its                      7.) Subsequently, when I tried to access the Court of
conclusion, the district court overlooked a key piece of                   Appeals with my criminal case, Reetz withheld my
evidence relating to causation: a type-written affidavit from              pleadings beyond the time for which relief could be
inmate Bruce Coxton. The Coxton affidavit states as follows:               sought and denied me access to postage stating . . .
                                                                           that I should have minded my own business.
  I, BRUCE COXTON, being first duly sworn deposes and
  says that the following statements are true and correct to           8.) I was also retaliated against for reporting this matter
  the best of my knowledge, information, and beleif [sic]:                 to Reetz and this could have seriously harmed
                                                                           Mease-X, maybe even his death as Close and
  1.) In or around May 1997, I did hear two correction                     Glowicki threatened.
      officers having a discussion about prisoner Mease-X
      [the plaintiff in this case] and they were clearly               9.) I attest that the foregoing is true and correct to the
      conspiring to cause him harm.                                        best of my knowledge, and make these statements
                                                                           under penalty of perjury.
  2.) I directly saw and heard officers M. Close and M.
      Glowicki standing approximately 3 feet from my               The affidavit is signed and dated October 2, 2001. It was
      cell door talking about how they were going to “get          filed with the district court as an exhibit attached to
      Mease-X ass.”                                                Muhammad’s objections to the magistrate’s report and
                                                                   recommendation, which he prepared and submitted without
  3.) I directly observed Close and Glowicki talking about         the benefit of counsel.
      how they had to “stop him from filing that appeal
      and get his ass out of here.” Glowicki responded to            We agree with Muhammad that the Coxton affidavit
      Close that “I should have killed the nigger when I           appears to be precisely the type of evidence of causation that
      had the chance.”                                             the district court thought was lacking. Even if not
                                                                   determinative of the issue, this affidavit is, at the very least,
  4.) I directly watched and overheard Close telling               a significant piece of evidence that – along with the other
      Glowicki how to set Mease-X up by placing a knife            evidence in this case – must be examined in connection with
No. 02-1043                          Muhammad v. Close          7

the causation analysis. Thus, we remand this case to the
district court for further proceedings.
   Close attempts to downplay the significance of the Coxton
affidavit by arguing that: (1) the affidavit is not notarized; and
(2) although dated prior to the date of the magistrate’s report,
it was not presented to the magistrate because it was filed as
an exhibit to Muhammad’s objections to the magistrate’s
report. Because the Coxton affidavit was completely ignored
in the district court proceedings, this is the first time that
Close has presented these arguments to any court. We decline
to address these issues in the first instance. Close is free to
advance these, and other, arguments in the district court on
remand.
   Additionally, Muhammad argues that the district court
erred in rejecting his argument that temporal proximity
between the protected conduct and the retaliatory action
existed in this case, sufficient to prove causation, because he
was away from the Standish Maximum Correctional Facility
for much of the time between the filing of the second lawsuit
and the incident in question. While we need not resolve this
issue on appeal, given our reliance on the Coxton affidavit,
we note that temporal proximity alone may be “significant
enough to constitute indirect evidence of a causal connection
so as to create an inference of retaliatory motive.” DiCarlo v.
Potter, 358 F.3d 408, 422 (6th Cir. 2004).
  Therefore, the district court should, on remand, determine
whether the Coxton affidavit alone, Muhammad’s proof of
temporal proximity alone, or both pieces of evidence together
are sufficient to defeat Close’s motion for summary
judgment.
  For these reasons, the district court’s judgment is
REVERSED and the case is REMANDED to the district
court for further proceedings consistent with this opinion.
