                                           PRECEDENTIAL

         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT
                   _____________

                       No. 13-3510
                      _____________

                   JOSEPH WATSON,

                                         Appellant

                            v.

 GERALD L. ROZUM, SUPERINTENDENT; DANIEL
  GEHLMANN, DEPUTY SUPT.; JOSEPH DUPONT,
HEARING OFFICER AT SCI SOMERSET; LEO GLASS,
MAJOR AT SCI SOMERSET; MELISSA HAINSWORTH,
 MAJOR AT SCI SOMERSET; SIMOSKO, SECURITY
 CAPTAIN AT SCI SOMERSET; SNYDER, SECURITY
 CAPTAIN AT SCI SOMERSET; COUTTS, SECURITY
          OFFICER AT SCI SOMERSET
               ________________

      On Appeal from the United States District Court
         for the Western District of Pennsylvania
          (D.C. Civil Action No. 3-12-cv-00035)
         District Judge: Honorable Kim R. Gibson
                    ________________

                  Argued October 8, 2015

 Before: McKEE, Chief Judge, AMBRO, and HARDIMAN,
                     Circuit Judges

             (Opinion filed: August 23, 2016)

Kathleen G. Kane
  Attorney General of Pennsylvania
Kemal A. Mericli (Argued)
Office of Attorney General of Pennsylvania
564 Forbes Avenue
6th Floor, Manor Complex
Pittsburgh, PA 15219

       Counsel for Appellees

Benjamin R. Barnett
Ellen L. Mossman (Argued)
Dechert, LLP
2929 Arch Street
18th Floor, Cira Centre
Philadelphia, PA 19104

       Counsel for Appellant
                    ________________

                OPINION OF THE COURT
                   ________________

McKee, Chief Judge

        Joseph Watson, an inmate at the State Correctional
Institution at Somerset, Pennsylvania, filed this action under
42 U.S.C. § 1983 alleging prison officials violated his First
Amendment rights by improperly issuing a misconduct
against him, and by retaliating against him for the exercise of
his First Amendment rights.

        The District Court dismissed Watson’s suit against
some of the officials with prejudice, and granted summary
judgment in favor of the remaining officials on Watson’s
surviving retaliation claims. Watson then filed this appeal.
For the following reasons, we will affirm in part, reverse in
part, and remand for further proceedings on Watson’s
retaliation claim against Officer Coutts.


                             I.
      Watson’s claims arise from the alleged mishandling
and confiscation of his radio during a routine cell search
conducted by Officer Kline at 8:30 A.M. on December 6,
2011. According to Watson, while inspecting Watson’s radio,
Kline pulled the antenna out so far that it broke off. Kline
claims a portion of the antenna was already broken and had

                               2
been secured with tape. Watson asserted that the antenna was
merely loose and not broken, but agreed that it was secured
with tape when Kline examined it. Watson accused Kline of
breaking the radio and insisted that Kline have it repaired.
According to Watson, he consented when Kline explained
that a broken radio is considered contraband that had to be
confiscated.1 Watson accompanied Kline to the officer’s desk
on the cellblock to fill out the paperwork required when an
inmate’s property is confiscated.

       In completing that paperwork, Kline noted that the
antenna was already broken when he found it. Watson
claimed Kline actually broke the radio and was not pleased
that Kline did not take responsibility. Watson asked Kline to
prepare an incident report documenting that Kline broke the
antenna. Kline refused. Watson then asked Captain Simosko
for a grievance form, but Simosko refused to give him one.

        Later that day Watson was summoned to the prison
security office where Officer Coutts purportedly asked
Watson about the broken radio. During this exchange, Coutts
purportedly stated that Watson had given Simosko and Kline
a “hard time” by asking for a grievance form and insisting
that the radio be repaired rather than just dropping the matter.
Coutts allegedly told Watson that, as a result, he was going to
give Watson a misconduct. According to Watson, Coutts said
that he (Watson) had not handled the situation “the polite
way” because he had insisted on filing a grievance.

       Watson did eventually fill out a grievance form that he
obtained from another prisoner. However, before Watson
could file his grievance, he was summoned to pick up a
misconduct notice that had been prepared by Coutts and
approved and signed by Security Captain Snyder. The
misconduct notice cited Watson with a Class I misconduct
and stated that the radio had been confiscated as contraband.
The misconduct form indicated that it was received at 2:23
P.M., nearly six hours after the search of Watson’s cell. After

1
  Department of Corrections Policy, DC-ADM 815, Section
3.C.1. A broken radio, altered from its original state, is
considered contraband pursuant to DOC rules and
regulations.
                               3
receiving the misconduct, Watson filed his grievance against
Kline. Watson did not file a grievance against anyone else
who had been involved with the confiscation of his radio or
the misconduct that was filed against him.

       Watson was ultimately found guilty of the charged
misconduct at a hearing conducted by Hearing Officer
Dupont. However, Dupont reduced the level of the
misconduct from Class I to Class II. The penalty that was
imposed was confiscation of Watson’s radio. Watson’s appeal
of the imposition of a Class II misconduct was denied by the
Department of Corrections’ Program Review Committee.
The Committee concluded that Dupont’s decision was
supported by the evidence at the hearing. Watson appealed
that decision to the prison superintendent who sustained the
prior decisions.

       Thereafter, Watson filed the present lawsuit. The
defendants were Gerald Rozum, Daniel Gehlman, Leo Glass,
Melissa Hainsworth, Coutts, Dupont, Synder, and Simosko.
The District Court dismissed all of Watson’s claims with
prejudice, with the exception of Watson’s retaliation claims
against Dupont, Simosko, Snyder and Coutts.

        Thereafter, the District Court adopted the Magistrate
Judge’s recommendations and granted summary judgment in
favor of each of the remaining defendants and against
Watson. The District Court agreed that summary judgment
was appropriate even if the record established that Watson
had made out a prima facie case of retaliation, because prison
officials would have issued the misconduct regardless of
Watson’s protected activity (the “same decision” defense).
This appeal followed.

                               II.

      We exercise plenary review over a District Court’s
grant of summary judgment.2 Summary judgment is
appropriate if there is no genuine issue of material fact and if,
viewing the facts in the light most favorable to the
nonmoving party, the moving party is entitled to judgment as

2
    Sutton v. Rasheed, 323 F.3d 236, 248 (3d Cir. 2003).
                                4
a matter of law.3 The judge’s function at the summary
judgment stage is solely to determine whether there is a
genuine issue of material fact for trial.4

        Watson alleged due process violations, an
unconstitutional search and seizure under the Fourth
Amendment and Fifth Amendment, prison policy violations,
state law violations and retaliation for engaging in conduct
protected by the First Amendment. As noted, all of Watson’s
initial claims were dismissed with prejudice, except for his
claim for relief based on the alleged retaliation. Watson now
appeals the District Court’s grant of summary judgment on
the retaliation claims. Therefore, we need only decide if
Watson’s retaliation claims survive summary judgment.

        Our analysis is guided by our decision in Rauser v.
Horn.5 In order to establish illegal retaliation for engaging in
protected conduct, Watson must prove that: (1) his conduct
was constitutionally protected; (2) he suffered an adverse
action at the hands of prison officials;6 and (3) his
constitutionally protected conduct was a substantial or
motivating factor in the decision to discipline him.7 Because
motivation is almost never subject to proof by direct
evidence, Watson must rely on circumstantial evidence to
prove a retaliatory motive. He can satisfy his burden with
evidence of either (1) an unusually suggestive temporal
proximity between the protected activity and the allegedly
retaliatory action, or (2) a pattern of antagonism coupled with
timing that suggests a causal link.8

       However, even if Watson establishes a prima facie
case, prison officials may still prevail if they establish that

3
  Carter v. McGrady, 292 F.3d 152, 157 n.2 (3d Cir. 2002).
4
   Id.
5
  241 F.3d 330 (3d Cir. 2001).
6
  An adverse action is one “sufficient to deter a person of
ordinary firmness from exercising his First Amendment
rights.” See Allah v. Seiverling, 229 F.3d 220, 225 (3d Cir.
2000) (internal quotation marks omitted).
7
  Rauser, 241 F.3d at 333-34.
8
  See Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259,
267 (3d Cir. 2007).
                               5
“they would have made the same decision absent the
protected conduct for reasons reasonably related to a
legitimate penological interest.”9 This is often referred to as
the “same decision defense.” For purposes of this appeal, the
named prison officials assume that Watson engaged in
constitutionally protected conduct and that he suffered an
adverse consequence. They argue that Watson cannot
establish the required causal nexus between the two and that,
even if he could, the same decision defense applies.
However, since we conclude that the evidence was sufficient
to survive summary judgment as to Coutts, we will explain
why we believe Watson satisfied the first two prongs of his
prima facie case rather than merely relying on the defendants’
assumption that he has.

A. Whether Watson’s Conduct was Constitutionally Protected

        Watson claims that he engaged in constitutionally
protected activity when he filed a grievance against a
corrections officer, and that defendants illegally retaliated by
citing him for misconduct. In Mitchell v. Horn, we explained
that filing such a grievance does “implicate[] conduct
protected by the First Amendment.”10 Here, the allegedly
retaliatory conduct occurred before he filed his grievance.
However, we do not believe that chronology necessarily
defeats Watson’s retaliation claim because he informed prison
officials of his intent to file a grievance and requested an
appropriate form from Simosko before any misconduct was
filed against him. For purposes of Watson’s retaliation claim,
we cannot discern a substantive distinction between
retaliation for informing prison officials of an intent to file a
grievance or requesting the necessary forms to do so on the
one hand, and actually filing such a grievance on the other.
Accordingly, the record is sufficient to establish the first
prong of Watson’s prima facie case of retaliation.
B. Whether Watson Suffered an Adverse Action at the Hands
of Prison Officials

      An adverse consequence “need not be great in order to
be actionable[;]” rather, it need only be “more than de

9
    Rauser, 241 F.3d at 334.
10
     318 F.3d 523, 530 (3d Cir. 2003).
                                6
minimis.”11 Watson clearly suffered an adverse consequence
when Coutts charged him with a Class I misconduct. Class I
misconducts subject inmates to a range of sanctions,
including a disadvantageous change in housing assignment,
placement in restricted housing or restrictive confinement for
up to 90 days, or a detrimental change in program level.12
They may also result in loss of the ability to participate in
prerelease programs, including work release and temporary
home furloughs for nine months.13 These are clearly more
than de minimis consequences. Moreover, even though his
Class I misconduct was reduced to a Class II misconduct at
his hearing, Watson lost his radio as a result and the Class II
misconduct became part of his prison record. This is
substantially more than a de minimis consequence for
someone confined in a prison cell.

C. Whether Watson’s Constitutionally Protected Conduct was
a Substantial or Motivating Factor in the Decision to
Discipline Him

       We now arrive at the main contention in this dispute –
whether the deprivation that Watson suffered was the result of
his protected activity as required to establish the third prong
of his prima facie case for illegal retaliation. We agree with
the District Court’s conclusion that Watson failed on this
prong and that summary judgment was appropriate for
Dupont, Simosko and Snyder.

       There is no evidence of improper motivation or
involvement in the issuance of the misconduct on the part of
Simosko. As for Snyder and Dupont, Watson attempted to
connect the confiscation of his radio to lawsuits he previously
filed against those two. According to Watson, Snyder
approved the misconduct, and Dupont upheld it, in retaliation
for a lawsuit that he filed against Snyder in 2008 and for a
separate lawsuit against Dupont in 2009. Watson has
conceded, however, that Dupont did not retaliate against him
regarding the grievance, and that his claim was based solely

11
   McKee v. Hart, 436 F.3d 165, 170 (3d Cir. 2006) (internal
quotations omitted).
12
   37 Pa. Code § 93.10.
13
   Id. § 94.3(a)(4).
                              7
on a prior lawsuit against Dupont. Indeed, the timing between
the prior suit against Dupont in 2009 and the confiscation of
Watson’s radio two years later is just too remote to suggest a
retaliatory motive here. Likewise, the timing for Snyder is
even weaker, as he would have approved the misconduct
charge despite the previous lawsuit Watson filed in 2008.
Nothing here suggests that those lawsuits had any connection
whatsoever to the fact that Watson’s radio was deemed to be
contraband.

       However, Coutts is in a different situation. As we
shall explain, the record supports conflicting inferences
regarding Coutts’ motive in issuing Watson’s misconduct.
Accordingly, disputed issues of fact surround the retaliation
claim against Coutts. Summary judgment in favor of him was
not appropriate.

       As we noted earlier, Watson can establish the third
element of a prima facie case of retaliation with evidence of:
(1) an unusually suggestive temporal proximity between the
protected activity and the allegedly retaliatory action, or (2) a
pattern of antagonism coupled with timing to establish a
causal link.14 However, “the timing of the alleged retaliatory
action must be ‘unusually suggestive’ of retaliatory motive
before a causal link will be inferred.”15 Moreover, causation,
like any other fact, can be established from the evidence
gleaned from the record as a whole.16 “[W]here the temporal


14
   Lauren W., 480 F.3d at 267; Rauser, 241 F.3d at 334
(concluding that “Rauser has demonstrated a suggestive
temporal proximity between his insistence on his First
Amendment rights and his [prison] transfer and wage
reduction.”).
15
   Estate of Smith v. Marasco, 318 F.3d 497, 512 (3d Cir.
2003) (internal quotation marks omitted) (quoting Krouse v.
Am. Sterilizer Co., 126 F.3d 494, 503 (3d Cir. 1997)).
16
   Farrell v. Planters Lifesavers Co., 206 F.3d 271, 281 (3d
Cir. 2000) (concluding “that the District Court employed too
restrictive a view of the type of evidence that can be
considered probative of the causal link. It is not limited to
timing and demonstrative proof, such as actual antagonistic
conduct or animus. Rather, it can be other evidence gleaned
                               8
proximity is not so close as to be ‘unduly suggestive,’” the
appropriate test is “timing plus other evidence.”17 Here,
Coutts’ statements to Watson satisfy any requirement for
“other evidence.”

        In reviewing a grant of summary judgment, we “view
the evidence and all justifiable inferences to be drawn
therefrom in the light most favorable to the non-moving
party.”18 We must determine if the record, viewed in this
light, contains a genuine dispute of material fact as to whether
Watson was punished for engaging in protected conduct apart
from the legitimate misconduct Coutts charged him with.

        Watson argues that the proximity between his
constitutionally protected action and the challenged adverse
action is sufficient to establish causation.19 According to
Watson, only a few hours elapsed between his request for a
grievance form and the issuance of the misconduct. The
confiscated items receipt was filled out at 8:40 A.M., soon
after Kline searched Watson’s cell and discovered Watson’s
radio. However, the misconduct was not issued until 2:23
P.M. that same day; nearly six hours after his radio was
seized and only after Watson had declared that he was going
to file a grievance.

       Before Coutts issued the misconduct, he purportedly
told Watson that he was being written up for giving Kline and
Simosko a “hard time” and for not being “polite.” Here
Coutts never elaborated on what he meant by saying Watson
gave the officers a “hard time” or was not being “polite,” and
inferences must be drawn in favor of Watson, as the
nonmoving party. Accordingly, Watson has established a
prima facie case against Coutts, because there is a genuine
issue of material fact as to whether Watson’s decision to file a

from the record as a whole from which causation can be
inferred.”).
17
   Id. at 280.
18
   Rauser, 241 F.3d at 334.
19
   Id. (concluding that “Rauser has demonstrated a suggestive
temporal proximity between his insistence on his First
Amendment rights and his transfer and wage reduction.”)
(internal citation omitted).
                               9
grievance motivated Coutts to charge him with misconduct.
Since he has established a prima facie case, we then look to
whether Coutts satisfies the same decision defense.

                               III.

        We begin our discussion of whether Coutts was
entitled to judgment as a matter of law with our decision in
Carter v. McGrady.20 There, an inmate claimed that he was
given a misconduct because prison officials resented his
functioning as a jailhouse lawyer. In rejecting that claim, we
noted that most prisoners’ retaliation claims will fail if the
misconduct charges are supported by the evidence. We
explained that “[e]ven if prison officials were motivated by
animus to jailhouse lawyers, Carter’s offenses, such as
receiving stolen property, were so clear and overt that we
cannot say that the disciplinary action taken against Carter
was retaliatory.”21 Accordingly, we “[could] not say that the
prison officials’ decision to discipline Carter for his violations
of prison policy was not within the ‘broad discretion’ that we
must afford them.”22 In reaching that conclusion, we
emphasized the “great deference” that the decisions of prison
administrators are entitled to in the context of disciplinary
proceedings.23

       Not all Circuit Courts of Appeals agree on this
standard. The Courts of Appeals for the Second, Eighth and
Eleventh Circuits have formulated a same decision defense
based on some evidence of prisoner misconduct,24 which

20
   292 F.3d 152 (3d Cir. 2002).
21
   Carter, 292 F.3d at 159.
22
   Id. (citing Thornburgh v. Abbott, 490 U.S. 401, 403 (1989)
(quotations in original).
23
   Id. at 158.
24
   See, e.g., Gayle v. Gonyea, 313 F.3d 677, 682 (2d Cir.
2002) (“The burden then shifts to the defendant to show that
the plaintiff would have received the same punishment even
absent the retaliatory motivation. The defendant can meet this
burden by demonstrating that there is no dispute that the
plaintiff ‘committed the most serious, if not all, of the
prohibited conduct charged in the misbehavior report.’”)
(citation omitted); Hartsfield v. Nichols, 511 F.3d 826, 829
                               10
originates from the Supreme Court decision in
Superintendent, Mass. Corr. Inst., Walpole v. Hill.25 There,
the Court held that prison disciplinary convictions may be
upheld if they are supported by “some evidence” of
misconduct. The Courts of Appeals for the Fifth and Seventh
Circuits, however, have found that some evidence is not an
absolute bar and permit claims by prisoners to go to trial if
the prisoner can offer evidence that contradicts prison
officials’ explanations for their action against the inmate.26

(8th Cir.2008) (reviewing allegations of false disciplinary
reports and concluding “claims of retaliation fail if the alleged
retaliatory conduct violations were issued for the actual
violation of a prison rule.”)(citation omitted); Orebaugh v.
Caspari, 910 F.2d 526, 528 (8th Cir.1990) (noting that “[N]o
claim can be stated when the alleged retaliation arose from
discipline imparted for acts that a prisoner was not entitled to
perform.”); Henderson v. Baird, 29 F.3d 464, 469 (8th Cir.
1994) (holding if there is “some evidence” that a prisoner
committed the alleged misconduct, that “essentially
checkmates his retaliation claim.”); O’Bryant v. Finch, 637
F.3d 1207, 1217 (11th Cir. 2011)(noting that “if the [prison]
official can show that he would have taken the disciplinary
action in the absence of the prisoner’s protected conduct, he
cannot be held liable.”).
25
   472 U.S. 445, 447 (1985) (concluding “that where good
time credits constitute a protected liberty interest, a decision
to revoke such credits must be supported by some
evidence.”).
26
   Woods v. Smith, 60 F.3d 1161, 1164–65 (5th Cir.1995)
(noting that a retaliation claim focuses not on the merits of the
disciplinary proceeding but on the retaliatory “interference,
asking only whether there has been an obstruction of the
exercise of a constitutional right.”). The “concern is whether
there was retaliation for the exercise of a constitutional right,
separate and apart from the apparent validity of the
underlying disciplinary” conviction. Id.; Greene v. Doruff,
660 F.3d 975, 977–80 (7th Cir.2011) (adopting but-for
causation with burden-shifting mechanism, and noting that
once prisoner shows that the violation was a motivating
factor, “the burden shifts to the defendant to show that the
harm would have occurred anyway.”). Although a state
appellate court decision, the Indiana Court of Appeals
                               11
However, in Rauser, we held that the defendant must
establish that the same decision would have been made even
absent any retaliatory motive.27

       As noted, in Carter we explained that we evaluate the
“the quantum of evidence” of the misconduct to determine
whether the prison officials’ decision to discipline an inmate
for his violations of prison policy was within the broad
discretion we must afford them.28 Given the force of the
evidence that Carter was guilty of receiving stolen property,
we held that the there was no genuine issue of material fact
that his misconduct citation was reasonably related to
legitimate penological interests, and that Carter would have
been disciplined notwithstanding his jailhouse lawyering.29

       Watson’s situation is different. Watson’s broken radio
was not so “clear and overt” a violation that we can conclude
that he would have been written up if he had not also given
prison officials “a hard time.” The radio had allegedly been in
the same condition for more than a year. Moreover, there is
evidence that other inmates had radios with loose or broken
antennas, but those items were not confiscated and the
inmates did not receive a misconduct. Finally, Kline did not
charge Watson with a misconduct when he confiscated the
radio. Accordingly, a reasonable fact finder could conclude
that the misconduct was issued in retaliation for Watson’s
statement that he was going to file a grievance, and not in
furtherance of legitimate penological goals.

       We note that this is not the first time that we have held
that a plaintiff can make out a retaliation claim even though

provides an example of a more flexible approach. See Medley
v. Lemmon, 994 N.E.2d 1177, 1190 (Ind. Ct. App.
2013)(noting that it is not clear whether a “retaliation claim
should automatically be defeated in such a situation,
especially where the decision of what punishment to impose
on a prisoner for a rules infraction is entirely discretionary.”).
27
   Rauser, 241 F.3d at 334 n.2 (citing Goff v. Burton, 7 F.3d
734, 737 (8th Cir.1993) as an example of a Circuit that takes
an opposing approach to ours).
28
   Carter, 292 F.3d at 159.
29
   Id.
                                12
the charge against him may have been factually supported.30
In Hill v. City of Scranton, four police officers survived
summary judgment on their claims that the city had retaliated
against them by selectively enforcing an ordinance to punish
them for a lawsuit that they had brought even though it was
clear that three officers violated the relevant ordinance.31 We
reasoned that it was not necessary for the officers to allege or
prove compliance with the ordinance to prevail on their First
Amendment claim.32

                              IV.

        For the reasons set forth above, we will affirm the
District Court’s grant of summary judgment on Watson’s
retaliatory claims against Dupont, Simosko and Snyder, but
reverse the grant of summary judgment in favor of Coutts and
remand for further proceedings on that claim.




30
   411 F.3d 118, 130 (3d. Cir. 2005).
31
   Id.
32
   Id. (noting that “The officers certainly do not need to allege
or prove compliance with the ordinance to prevail on their
First Amendment claim. Discriminatory enforcement of a
statute or ordinance is not justified simply because the
enforcement is otherwise valid.”).
                               13
         Joseph Watson v. Gerald Rozum et al.
                    No. 13-3510
_________________________________________________

AMBRO, Circuit Judge, concurring

         Imagine a guard tells an inmate accused of misconduct
that he never would have been charged if he had not filed a
complaint against prison officials. The inmate admits to the
misconduct but argues that the retaliatory enforcement is
nonetheless unlawful. Can the guard, having conceded that
the outcome would have been different without the complaint,
still take advantage of something we call the “same decision”
defense? If we are to give any meaning to the name of the
defense, the answer must be “no.”
        However, some panels of our Court have come out
differently in non-precedential opinions, leading to confusion
in the district courts about the state of our law. Those
outcomes, though incorrect in my view, draw support from
decisions in some of our sister circuits. Thus, in addition to
joining Chief Judge McKee’s excellent opinion, which fully
resolves our case, I write separately to discuss the application
of the same decision defense in future lawsuits.
       In our Court, the confusion starts with our decision in
Carter v. McGrady, 292 F.3d 152 (3d Cir. 2002). That case
involved a prisoner who was disciplined for “egregious
violations of prison policy,” including receiving a stolen
typewriter and sending unauthorized letters. Id. at 154. He
argued that the reason for the disciplinary charges was that
prison officials resented him for working as a jailhouse
lawyer. However, there was overwhelming evidence of his
guilt and nothing concrete to suggest that he was being
charged only because he helped other inmates with their legal
matters. We therefore concluded that, even if he could
establish a prima facie First Amendment retaliation case, the
same decision defense applied. We wrote:

       Given the quantum of evidence of Carter’s
       misconduct, we cannot say that the prison
       officials’ decision to discipline Carter for his
       violations of prison policy was not within the
       broad discretion that we must afford them. Even
       if prison officials were motivated by animus to
       jailhouse lawyers, Carter’s offenses, such as
       receiving stolen property, were so clear and
       overt that we cannot say that the disciplinary
       action taken against Carter was retaliatory.
Id. at 159 (internal quotation marks and citation omitted).
       This passage raised two questions. First, what
“quantum” of evidence is required to trigger Carter? And in
cases where that “quantum” has been reached, can the same
decision defense nonetheless fail? Until today’s decision we
had never addressed either question in a precedential opinion.
However, a series of non-precedential opinions from panels
of our Court suggested that the answer to the first question is
merely “some evidence” and that the answer to the second is
“no.” See, e.g., Bullock v. Buck, 611 F. App’x 744, 748 (3d
Cir. 2015); Dockery v. Beard, 509 F. App’x 107, 111 (3d Cir.
2013). Under Internal Operating Procedure 5.7, these non-
precedential opinions do not speak for the full Court or
constitute binding precedent. However, our district courts
have applied these answers in more than 80 cases, and the
time has come for us to clarify.
       So from where, if not Carter, do these answers come?
As it turns out, our district courts and our non-precedential
opinions have borrowed them from the Eighth Circuit. In




                               2
Orebaugh v. Caspari, 910 F.2d 526 (8th Cir. 1990), that
Court held that, “[w]hile a prisoner can state a claim of
retaliation by alleging that disciplinary actions were based
upon false allegations, no claim can be stated when the
alleged retaliation arose from discipline imparted for acts that
a prisoner was not entitled to perform.” Id. at 528. It reasoned
that a contrary holding “would allow a prisoner to openly
flout prison rules after filing a grievance and then bring a
claim under section 1983 arguing that prison officials
disciplined him in retaliation for his filing a grievance.” Id.
Thus, it gave a “no” answer to our second question—whether
a prisoner can ever succeed in a retaliation lawsuit when there
is sufficient evidence that he was disciplined for misconduct
he actually committed. As for the first question—the amount
of proof required—the Court implied that the standard is
“some evidence” supporting the misconduct charge. Id.
        Next, in Henderson v. Baird, 29 F.3d 464 (8th Cir.
1994), the Court expressly adopted the “some evidence”
standard. Specifically, it held that a “finding [of misconduct
that] was based on some evidence of the violation . . .
essentially checkmates [a] retaliation claim.” Id. at 469. Lest
anyone draw too much encouragement from the word
“essentially,” the Court later restated its test without that
qualifier. See Hartsfield v. Nichols, 511 F.3d 826, 829 (8th
Cir. 2008) (“[C]laims of retaliation fail if the alleged
retaliatory conduct violations were issued for the actual
violation of a prison rule. Thus, a defendant may successfully
defend a retaliatory discipline claim by showing some
evidence the inmate actually committed a rule violation.”)
(emphasis added) (internal quotation marks and citation
omitted).
      Our district courts and our non-precedential opinions
have treated these Eighth Circuit cases as a way to give
meaning to Carter’s standards. This is a problem for two




                               3
reasons. First, Carter never said that “some evidence” is a
sufficient “quantum” or that it is impossible for a prisoner to
succeed in a retaliation case when there is enough evidence of
misconduct. And second, I believe that the Eighth Circuit’s
cases were wrongly decided and that, even if that were not so,
our precedent prevents us from importing them into our law.
        Judge Heaney’s partial dissent in Orebaugh
persuasively explains the problems with the Eighth Circuit’s
reasoning. He wrote that “no court has heretofore
articulated . . . a rule” that “the legitimate reasons the prison
officials have advanced”—i.e., that the prisoner actually
engaged in misconduct—“are dispositive of [a] retaliation
claim.” 910 F.2d at 529–30 (Heaney, J., concurring in part
and dissenting in part). He said that a prisoner instead
“deserves the opportunity to try to show that the reasons
given for disciplining him were a pretext for the prison
officials’ retaliatory animus.” Id. He concluded by observing:

       In its zeal to stem the tide of prisoner litigation
       and in a misguided attempt to discourage the
       open flouting of prison rules, the majority . . .
       denies Orebaugh . . . equal access to the
       adversarial process . . . and deprives this court
       of the opportunity to review Orebaugh’s
       retaliation claim on an adequately developed
       record. In so doing, the majority immunizes
       from review any trivial disciplinary charge that
       prison officials can support with some evidence,
       allowing such officials to inhibit prisoners’
       constitutional right of access to grievance
       procedures with impunity.
Id. at 530.




                               4
        The Fifth Circuit has agreed with Judge Heaney. It
noted that the Eighth Circuit’s approach might make sense for
malicious prosecution claims, which require plaintiffs to
show that the charges against them were legally “groundless.”
Woods v. Smith, 60 F.3d 1161, 1164–65 (5th Cir. 1995). A
“retaliation claim, on the other hand, focuses on . . .
interference, asking only whether there has been an
obstruction of the exercise of a constitutional right.” Id. at
1165. It therefore held that an “action motivated by retaliation
for the exercise of a constitutionally protected right is
actionable, even if the act, when taken for a different reason,
might have been legitimate.” Id. Any other ruling “would
unfairly tempt corrections officers to enrobe themselves and
their colleagues in what would be an absolute shield against
retaliation claims.” Id.
        Meanwhile, other than concerns over an onslaught of
lawsuits, the Eighth Circuit has given very little justification
for its approach. The closest we get is a citation in Henderson
to the Supreme Court’s decision in Superintendent v. Hill,
472 U.S. 445 (1985). That decision does use the term “some
evidence,” but in a different context. The Supreme Court
addressed a claim that officials violated a prisoner’s Fifth
Amendment due process rights by arbitrarily taking away his
good time credits, which would have lowered his sentence
based on good behavior. The Court ruled that the Constitution
requires, at a minimum, that prison disciplinary decisions be
supported by “some evidence” before officials can interfere
with an inmate’s protected liberty interests. Id. at 447.
       Nothing in Hill requires, or even suggests, its use in
First Amendment retaliation cases, and the Eighth Circuit has
not explained why it has applied that standard. Hill says that a
disciplinary proceeding will not be constitutionally infirm if
there is “some evidence.” But officials cannot cleanse a First
Amendment violation merely by complying with the Fifth




                               5
Amendment. Due process requires that a prisoner have a fair
opportunity to show that he did not commit the misconduct.
The First Amendment provides that, even if he did commit it,
he has a right to be free from enforcement that would not
have occurred if he had not filed a complaint. See, e.g.,
Graham v. Henderson, 89 F.3d 75, 80 (2d Cir. 1996) (“The
issue in Hill was merely whether there was, and whether there
needed to be, some evidence to support a prison disciplinary
decision. The issue here is whether the disciplinary decision
was improperly motivated.”).
        There is another reason not to apply the Eighth
Circuit’s test in our cases. In that Circuit a plaintiff has the
burden to disprove the same decision defense. See Goff v.
Burton, 7 F.3d 734, 737 (8th Cir. 1993). The Eighth Circuit
has acknowledged that, in the employment retaliation context,
the Supreme Court has put the burden of establishing the
defense on the defendant. See id. at 737–38 (citing Mount
Healthy Bd. of Ed. v. Doyle, 429 U.S. 274 (1977)). However,
it has declined to use the Mount Healthy test in prisoner
retaliation cases. Id.

       By contrast, we have rejected Goff and, per Mount
Healthy, placed the burden in prisoner retaliation cases on the
defendant to establish the same decision defense. See Rauser
v. Horn, 241 F.3d 330, 333 & n.2 (3d Cir. 2001) (adopting
Mount Healthy and disagreeing with Goff). Our use of Mount
Healthy is significant. That is because, as Chief Judge McKee
notes in our panel’s majority opinion, we already have held
that the same decision defense from Mount Healthy does not
automatically bar liability when a plaintiff is charged, based
on retaliatory motivations, for misconduct that he actually
committed.
      For instance, in Hill v. City of Scranton, 411 F.3d 118
(3d Cir. 2005), police officers were fired for violating an




                               6
ordinance. It was clear that they did not comply with the
ordinance, but they argued that the City would not have
enforced it had they not engaged in constitutionally protected
activity. We held that under Mounty Healthy the officers did
not need to show “compliance with the ordinance to prevail
on their First Amendment claim” because “[d]iscriminatory
enforcement of a statute or ordinance is not justified simply
because the enforcement is otherwise valid.” Id. at 130. The
same should be true here.1


1
   The Eleventh Circuit has adopted the Eighth Circuit’s
approach. See O’Bryant v. Finch, 637 F.3d 1207, 1215 (11th
Cir. 2011). Thus, my criticisms of the latter’s test apply with
equal force to the former’s. Meanwhile, the Second Circuit
has reached a similar result, albeit by different reasoning. See
Gayle v. Gonyea, 313 F.3d 677, 682 (2d Cir. 2002) (“The
burden then shifts to the defendant to show that the plaintiff
would have received the same punishment even absent the
retaliatory motivation. The defendant can meet this burden by
demonstrating that there is no dispute that the plaintiff
‘committed the most serious, if not all, of the prohibited
conduct charged in the misbehavior report.’”) (internal
citation omitted) (quoting Hynes v. Squillace, 143 F.3d 653,
657 (2d Cir. 1998)). Hynes, in turn, relies on a “presumption
that a prison official’s acts to maintain order are done for a
proper purpose.” 143 F.3d at 657 (internal quotation marks
omitted). The problem is that the Court never explains why
this presumption cannot be rebutted. Surely there are
circumstances where evidence can show that an official was
not acting for a proper purpose. But this test closes the door to
such proof. I note, however, that the Second Circuit’s
approach, though one I disagree with, at least requires that
there be “no dispute” as opposed to merely “some evidence.”




                               7
        Today’s decision takes an important step toward
clarifying that Carter does not incorporate the Eighth
Circuit’s approach. In particular, there is undoubtedly “some
evidence” that Joseph Watson’s prison radio was contraband.
But we correctly hold that this is not the type of “clear and
overt” misconduct that satisfies Carter’s “quantum of
evidence” standard. See Carter, 292 F.3d at 159.
       Indeed, this case provides an example of why Judge
Heaney and the Fifth Circuit in my view are correct.
Watson’s radio was normal in all respects but one—it had a
small piece of tape securing the antenna. Prison regulations
define contraband to include “any item altered from its
original state.” See Department of Corrections Policy, DC-
ADM 815, Section 3.C.1. Under this definition, ethereal in
the kindest sense, Watson’s taped-up radio counted. And, as
Chief Judge McKee notes, punishment for contraband
violations can include up to 90 days in restrictive
confinement. If officials were allowed to hunt for every minor
instance of misconduct in an effort to punish inmates for their
speech, the First Amendment would ring hollow inside a
prison’s walls.
        Though Chief Judge McKee’s opinion provides
needed guidance on the first question left open by Carter (the
“quantum” of evidence that is needed), it has no occasion to
reach the second (whether the same decision defense can ever
fail if there is a sufficient “quantum”). For this second
question to arise, the evidence of misconduct would need to
be greater (a sufficient “quantum” under Carter) than it was
here, and the proof that the official would not have taken the
same action in the absence of constitutionally protected
activity would need to be stronger. Take, for instance, the
hypothetical at the beginning of this concurring opinion,
where the guard admits that there would have been no charge
without the complaint. What then?




                              8
       This is an important question, and I hope that in future
cases we will be able to provide a clear answer. As discussed,
in Carter we held that, “[e]ven if prison officials were
motivated by animus to jailhouse lawyers,” the offenses
“were so clear and overt that we cannot say that the
disciplinary action taken against Carter was retaliatory.” 292
F.3d at 159. But I do not read this to mean that all “clear and
overt” violations will lead to the same result. In that case,
there was no direct evidence that the officials were motivated
solely by a desire to retaliate. Rather, the best scenario for the
inmate was that the officials had mixed motivations—some
legitimate and others not. This is the situation in which the
same decision defense is supposed to apply. However, in
cases where there is direct evidence that retaliation drove a
charging decision, the defense does not shield a defendant
from liability. The defense’s very name belies its
applicability.
       To discourage overreading this concurrence, I note that
I have no doubt that an official who disciplines an inmate for
a “clear and overt” violation should enjoy a strong
presumption that the same decision defense applies. As the
Eighth Circuit has recognized, it would produce chaos if
prisoners could survive summary judgment on retaliation
claims in response to every routine disciplinary action. Such
an outcome would be inconsistent with the Supreme Court’s
instruction that, in “the volatile prison environment, it is
essential that . . . officials be given broad discretion to
prevent . . . disorder.” Thornburgh v. Abbott, 490 U.S. 401,
413 (1989). Thus, though a “legitimate prison disciplinary
report” is not an “absolute bar to a retaliation claim,” it is
“probative and potent summary judgment evidence.” Woods,
60 F.3d at 1166. But the Eighth Circuit has overcorrected for
the problem. There is no reason to disregard normal First
Amendment standards by closing the door entirely. The




                                9
power to prevent disorder is not a license to retaliate. With
the right evidence, the presumption should be rebuttable.

                      *   *   *    *   *
       In sum, today’s majority opinion clarifies that not
every violation of prison protocols supported by some
evidence will bar a First Amendment retaliation claim. That is
particularly so with relatively minor offenses, such as a radio
antenna secured by tape. The standards for more serious
violations will need to be decided in future cases.




                              10
Joseph Watson v. Gerald L. Rozum, et al., No. 13-3510

HARDIMAN, Circuit Judge, dissenting.

        The Court’s opinion and the concurrence shed light on
a lacuna in our precedent on First Amendment retaliation
claims in the prison context, namely whether and how a
prisoner can overcome the “same decision” defense when the
adverse action complained of is a charge of prison
misconduct and the prisoner concedes the facts giving rise to
the charge. Unlike my colleagues, however, I do not see this
appeal as the appropriate vehicle for answering that question.
Under the current state of the law, courts are required to
uphold government action motivated by retaliatory animus as
long as the responsible government officials can show that the
same action would have occurred for reasons unrelated to
retaliation—a mixed-motive defense. Here, the evidence the
parties have proffered on summary judgment establishes at
most that a prison guard acted with mixed motive, which is
not enough. Because I believe Watson’s appeal flounders on
that evidentiary ground, I respectfully dissent.

                              I

       In Rauser v. Horn, 241 F.3d 330, 333–34 (3d Cir.
2001), we “imported” the burden-shifting scheme enunciated
by the Supreme Court in Mt. Healthy City School District
Board of Education v. Doyle, 429 U.S. 273, 288 (1977), to
adjudicate First Amendment retaliation claims brought by
prisoners. Under Mt. Healthy, the causal relationship between
protected conduct and adverse action requires a showing of
but-for causation. Instead of placing the heavy burden of
proving but-for causation solely on the prisoner, however, we
“divided the burden of proof relating to causation between the
parties.” Green v. Doruff, 660 F.3d 975, 980 (7th Cir. 2011).
Thus, once a prisoner shows that a retaliatory motive was a
“substantial or motivating factor” leading to the adverse
action, the burden shifts to prison officials to show that “they
would have made the same decision absent the protected
conduct for reasons reasonably related to a legitimate
penological interest.” See Rauser, 241 F.3d at 334.
Accordingly, Rauser’s same-decision defense essentially
requires prison officials to disprove that the retaliatory motive
was a but-for cause of the adverse action.1

        The upshot of Mt. Healthy and Rauser’s emphasis on
but-for causation is that a prisoner cannot negate a same-
decision defense merely by pointing to the existence of
retaliatory motive on the part of prison officials, i.e., that the
prison officials acted with mixed motives. Instead, the
prisoner must counter a same-decision defense directly, that
is, with evidence demonstrating that retaliation was a but-for
cause. To hold otherwise would permit the prisoner to
override the same-decision defense using exactly the same
evidence relevant to establishing his prima facie case. This, in
turn, would vitiate the inference of but-for causation that

       1
         Some of our sister courts impose a higher burden on
prisoners. See Rauser, 241 F.3d at 334 n.2 (citing Goff v.
Burton, 7 F.3d 734, 737–38 (8th Cir. 1993); Woods v. Smith,
60 F.3d 1161, 1166 (5th Cir. 1995); McDonald v. Hall, 610
F.2d 16, 18 (1st Cir. 2001)); see also Rhodes v. Robinson, 408
F.3d 559, 567–68 (9th Cir. 2005) (requiring the prisoner to
prove that the adverse action “did not reasonably advance a
legitimate correctional goal”).




                                2
arises when prison officials fail to prove the same-decision
defense, see Greene, 660 F.3d at 979, and would undermine
the purpose of allowing a mixed-motive defense in the first
place: achieving an appropriate balance between protecting
the prisoner’s constitutional rights, and avoiding the
“undesirable consequences not necessary to the assurance of
those rights.” 429 U.S. at 287.

                              II

        The Majority references but-for causation only in
passing, and instead focuses its attention on the open question
of what (if any) evidence a prisoner can offer to overcome the
same-decision defense. It confronts this open question in a
scenario that has received significant judicial attention but
upon which we have opined only in limited fashion.
Specifically, Watson has conceded the factual predicates
giving rise to his misconduct— that his radio’s antenna was
“loose” and “wiggly” and that he had secured the antenna to
the radio with tape, see Watson Br. 16—but nonetheless
contends that he was issued a misconduct in retaliation for
requesting a grievance form. Several of our sister courts
would foreclose his claim merely by virtue of the fact that his
misconduct is supported by “some evidence,” Henderson v.
Baird, 29 F.3d 464, 469 (8th Cir. 1994), or because “there is
no dispute that [Watson] committed the most serious, if not
all, of the prohibited conducted charged.” Gayle v. Gonyea,
313 F.3d 677, 682 (2d Cir. 2002) (internal quotation marks
omitted). See also O’Bryant v. Finch, 637 F.3d 1207, 1215
(11th Cir. 2011) (“[A]n inmate cannot state a claim of
retaliation for a disciplinary charge involving a prison rule
infraction when the inmate was found guilty of the actual
behavior underlying that charge after being afforded adequate
due process.”). Our only precedential foray into this area



                              3
acknowledges that a “clear and overt” violation of prison
regulations could potentially preclude a genuine dispute of
material fact on the same-decision defense. See Carter v.
McGrady, 292 F.3d 152, 159 (3d Cir. 2002).

        These decisions suggest that a certain “quantum” of
misconduct evidence, id., will “checkmate[]” a prisoner’s
retaliation claim, Henderson, 29 F.3d at 469, a proposition
that the Court today neither accepts nor rejects. Instead, the
Majority asserts that the record in this case supports opposing
inferences that establish a genuine dispute of material fact on
Officer Coutts’s same-decision defense. Thus, the Majority
contrasts this appeal with Carter v. McGrady by stating:

      Watson’s situation is different. Watson’s broken
      radio was not so “clear and overt” a violation
      that we can conclude that he would have been
      written up if he had not also given prison
      officials “a hard time.” The radio had allegedly
      been in the same condition for more than a year.
      Moreover, there is evidence that other inmates
      had radios with loose or broken antennas, but
      those items were not confiscated and the
      inmates did not receive a misconduct. Finally,
      [Officer] Kline did not charge Watson with a
      misconduct when he confiscated the radio.
      Accordingly, a reasonable fact finder could
      conclude that the misconduct was issued in
      retaliation for Watson’s statement that he was
      going to file a grievance, and not in furtherance
      of legitimate penological goals.

Majority Op. 12–13.




                              4
       Based on my examination of the summary judgment
record, I do not agree that “Watson’s situation is different.”
At best, his evidence reiterates that retaliation was among
Coutts’s motivations for issuing the misconduct, but does not
demonstrate that Watson would not have received the
misconduct in the absence of that retaliatory motive. In other
words, Watson’s evidence fails to establish a genuine dispute
concerning the element of but-for causation (or lack thereof)
that lies at the center of the same-decision defense.
Accordingly, this appeal does not present an occasion for us
to consider whether and how the same-decision defense can
be overcome.

      The Majority places substantial weight on statements
made by Coutts to the effect that he issued the misconduct
because Watson gave the guards a “hard time.” This evidence
comes by way of Watson’s deposition testimony, and I
excerpt the relevant portions of the record in the margin.2 The

      2
             A. Officer Coutts . . . was
             interrogating me about the radio,
             saying that I gave his Captains
             and the other Officer a hard time
             by wanting my radio antenna
             fixed, instead of just leaving it
             alone. Now I’m going to get a
             Misconduct and Mr. DuPont is
             going to keep my radio.

      App. 62.

             Q. They’re going to keep your
             radio? That’s what [Coutts] said?




                              5
      A. Right . . . So we go back and
      forth. So I was telling [Coutts]
      that the [sic] Officer Kline broke
      it. So I was just asking him, could
      he fill out an incident report, so I
      could have my radio antenna
      fixed. And then he was saying . . .
      that I didn’t do it in a polite way
      and I wanted an incident report
      filled out. But then I asked for a
      Grievance, you know. And I said,
      yeah, well, that’s the policy, you
      know. I need an incident report
      filled out so that the Officer that
      broke the antenna, so I can have
      my radio fixed. But I still have to
      make a Complaint.

      Anyway, he said, well, go back to
      the Unit and they going to call
      you back down here to pick up
      your Misconduct.

App. 62–63.

      Q. But you had thought that
      [Coutts] was calling you down to
      pick up your radio; right?

      A. Right. But, the point is, when I
      got down here, he was
      interrogating me and he had told
      me, being that I gave his Captain



                       6
important point here is that Watson’s testimony establishes at
most that Coutts acted with retaliatory motive, but it hardly
demonstrates that his motive was a but-for cause of the
misconduct. By permitting such an inference from Coutts’s
admission, the Majority undoes the careful balance
underlying the same-decision defense by allowing Watson to
survive summary judgment simply by asserting that Coutts
acted with mixed motive. Moreover, by acknowledging that
other prison officials in Coutts’s chain of command “would
have approved the misconduct” irrespective of his request for
a grievance, Majority Op. 8, the Majority’s inference of but-
for causation with respect to Coutts cannot be squared with its
conclusions regarding causation as to the other defendants
because all of them had a hand in bringing about the
challenged conduct—the issuance of the misconduct.

      The Majority’s consideration of the remaining
evidence is equally unpersuasive. First, the Majority asserts
that Watson’s broken radio was not a “clear and overt”

             and the other Officer a hard time,
             I’m going to be written-up.

      App. 65.

             A. Right. [Coutts] stated, you
             gave my Captain and the other
             Officers a hard time, wanting a
             Grievance and an Incident Report
             filled out. For that, you’re getting
             a Misconduct.

      App. 90.




                              7
violation of prison regulations in contradistinction to Carter.
However, under these regulations, “any item altered from its
original state (state issued or personal) may be considered
contraband,” App. 4 (quoting DC-ADM-815 § 3.C.1), and
there is no factual dispute that Watson altered his radio’s
antenna by securing it to the radio with tape. As such, the
radio was contraband, and Watson’s possession of it was
unquestionably a violation. To the extent that the Majority
disagrees, it is worth noting that Watson has not challenged
the regulation’s validity, and its application to his radio is
neither irrational nor fails to serve a legitimate penological
interest. See Turner v. Safley, 482 U.S. 78, 89 (1987). Indeed,
it is not difficult to see why a detached antenna poses a
security threat in a prison.

        Second, the Majority emphasizes the temporal aspects
surrounding the issuance of Watson’s misconduct,
specifically that Officer Kline failed to issue a misconduct
when he confiscated Watson’s radio, and the radio had been
contraband for over a year without action from prison
officials. It is not clear how these considerations should cut
with respect to Coutts, as opposed to Kline or the other
officers. There is no suggestion that Coutts failed to act
immediately when he learned of Watson’s radio, or that he (or
any other officer for that matter) was simply hunting for an
infraction of prison rules. Thus, I do not agree that the timing
of the misconduct issued against Watson supports an
inference of but-for causation against Coutts.

       Finally, the Majority suggests that Watson has shown
discriminatory application of the contraband regulation based
on evidence that similarly situated prisoners with broken
radios were not issued misconducts because they did not
make requests to file grievances. I agree that the disparate



                               8
treatment of similarly situated individuals can support an
inference of but-for causation, but Watson’s evidence falls far
short of the mark. The evidence in question comprises
declarations filed by three of Watson’s fellow prisoners:
Frank Trainer, Harry Montgomery, and Ronald Banks. The
affidavits filed by Trainer and Montgomery are not probative
in this case because they fail to identify any of the officers
responsible for the averred conduct; Banks’s declaration
names Captains Simosko and Dupont, but says nothing about
Coutts, so it too is of limited value. Banks’s declaration
actually cuts against Watson because it mentions an instance
in which Simosko and Dupont upheld a misconduct charge
involving an “altered” radio in the absence of a grievance
request, i.e. a paradigmatic nonretaliatory application of the
contraband regulation. See App. 127. Thus, I cannot agree
with the Majority that Watson’s evidence suffices to create a
genuine dispute as to whether he would have received his
misconduct in the absence of his request to file a grievance.

                       *      *      *

      For the foregoing reasons, I respectfully dissent.




                              9
