                   United States Court of Appeals
                        FOR THE EIGHTH CIRCUIT
                               _____________

                              No. 00-3505WM
                              _____________

Edward Allen Moore,                    *
                                       *
             Appellant,                *
                                       *
      v.                               *
                                       *
Sam Plaster, Investigator; David       *
Williams, Investigator; D. Dormire,    *
Superintendent; Julie Koenigsfeld,     *
Librarian; Michael Groose, Assistant   *
Director; Dora Schriro, Director;      *
Jean Ann Johnson, Assistant            *
Superintendent; V. Conway,             *
Caseworker; R. McBee, Sergeant;        *   On Appeal from the United
Sherie Koreman; Caseworker; Kane,      *   States District Court
Sergeant; Mike Kemna, Superintendent; *    for the Western District
Dan Greene, Arthur Wood,               *   of Missouri.
Caseworker; David Webster,             *
Caseworker; Gerald Bommel, Assistant *
Superintendent; Darlene Wansing,       *
Finance Officer; J. Kumberg,           *
Caseworker, JCCC; Deborah Carroll,     *
Assistant Librarian at CrCC;           *
S. Saunders, Correctional Officer, II, *
CrCC; Amy Gertz, Caseworker at         *
CrCC; Russell Hollowell, Caseworker    *
at CrCC; State of Missouri, and        *
Missouri Department of Corrections     *
and Human Resources,                   *
                                       *
             Appellees.                *
                                   ___________

                          Submitted: July 20, 2001
                              Filed: September 24, 2001
                                  ___________

Before MORRIS SHEPPARD ARNOLD, RICHARD S. ARNOLD, and BYE, Circuit
      Judges.
                          ___________

RICHARD S. ARNOLD, Circuit Judge.

      Edward Allen Moore, a Missouri inmate, appeals the District Court’s grant of
summary judgment in favor of defendants, Sam Plaster, the State of Missouri, the
Missouri Department of Corrections (MDC), and 22 MDC officials, in his 42 U.S.C.
§ 1983 suit alleging retaliation and various other claims under state and federal law.
We affirm in part, reverse in part, and remand.

                                   I. Background

       Mr. Moore was incarcerated in Jefferson City Correctional Center and later
transferred to Crossroads Correctional Center. While at Jefferson City, Mr. Moore was
placed in temporary administrative segregation confinement (TASC) for one week in
July 1996 while prison officials investigated his possible violation of prison rule 11
(possession or use of an intoxicating substance). Pursuant to the investigation,
Investigator Plaster administered a lie detector test. The defendants claim Mr. Moore
failed the test, but Mr. Moore claims he passed. In September of 1996, a disciplinary
committee found Mr. Moore guilty of violating rule 11 and levied sanctions against
him.

       In February of 1997, Investigator Plaster issued Mr. Moore a rule 11 conduct
violation. According to his report, an investigation of a prison visitor led him to

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conclude that Mr. Moore had conspired to smuggle contraband into the prison. After
a hearing, the disciplinary committee found Mr. Moore guilty, and he was sanctioned.
During the grievance process, this charge was expunged from his record.

       In March of 1997, Mr. Moore spent three weeks in TASC. A temporary
administrative confinement report states that Mr. Moore was placed in TASC for
security reasons and for violating rule 11. Mr. Moore was then transferred to
Crossroads.

       At Crossroads, the prison’s financial officer withdrew funds from Mr. Moore's
prison account pursuant to 28 U.S.C. § 1915(b)(2) and (3)1 for payment of court filing
fees when his account balance was less than ten dollars. On another occasion, the
prison improperly withdrew an excess of $39.00 from Mr. Moore’s account.

       Mr. Moore filed suit against the defendants in the District Court, advancing the
following claims: (1) that the disciplinary charges were false and filed in retaliation for
the exercise of his constitutional rights; (2) that he was denied meaningful access to the

      1
       Under the Prisoner Litigation Reform Act, an inmate may file a civil action or
an appeal in forma pauperis, but he must pay an initial partial filing fee. However,

      (2) After payment of the initial partial filing fee, the prisoner shall be
      required to make monthly payments of 20 percent of the preceding
      month's income credited to the prisoner's account. The agency having
      custody of the prisoner shall forward payments from the prisoner's
      account to the clerk of the court each time the amount in the account
      exceeds $10 until the filing fees are paid.

      (3) In no event shall the filing fee collected exceed the amount of fees
      permitted by statute for the commencement of a civil action or an appeal
      of a civil action or criminal judgment.

28 U.S.C. § 1915(b)(2) & (3).


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courts; (3) that both withdrawals from his prison account were improper under 28
U.S.C. § 1915(b)(2) and a violation of the Due Process Clause; (4) that the
superintendent of prisons failed to pay him for the month of September in 1997; (5)
that the prison had an official policy of deducting money from prisoners’ accounts in
violation of 28 U.S.C. §§ 1915(b)(2) and (3); (6) that prison employees were liable for
trespass, conversion, and inverse condemnation; (7) that 28 U.S.C. §§ 1915(b)(2) and
(3) violate the Fifth and Eighth Amendments; (8) that the District Court for the Western
District of Missouri had a de facto policy of excessive delay in prisoner cases, thereby
violating the Due Process Clause; and (9) that 28 U.S.C. § 1915A and 42 U.S.C. §
1997e(a) violate the First and Fifth Amendments. In addition, Mr. Moore asserted that
federal jurisdiction existed on the basis of both 28 U.S.C. § 1331, federal question, and
28 U.S.C. § 1332, diversity of citizenship.

        After discovery, the defendants filed a motion for summary judgment. The Court
granted the motion on the retaliation claim, holding that the record disclosed sufficient
evidence of Mr. Moore’s violation of prison rules. Moore v. Plaster, No. 97-6163-CV-
SJ-9-5-P, slip op. at 2-3 (W.D. Mo. Aug. 28, 2000). As to Mr. Moore's access-to-the-
courts claim, the Court held that the plaintiff had not identified the "potential grounds
he wished to raise [in his various post-judgment motions], thus making it impossible
for this court to ascertain whether [he] possessed the requisite nonfrivolous claim[s]."
Id. at 4 (alteration in original) (citation and internal quotation omitted).

        As to Mr. Moore's claims under 28 U.S.C. § 1915(b), the Court found that his
pay for September 1997 and the erroneously withdrawn $39.00 had later been credited
to his prison account. The Court then granted summary judgment on all of Mr.
Moore’s federal claims, except his claim regarding the money withdrawn in violation
of the ten-dollar exemption. Lastly, the Court ordered Mr. Moore to submit a pleading
detailing which state law claims he advanced on the basis of diversity of citizenship and
the amount of recovery sought. After receiving Mr. Moore’s pleading, the Court held
that it was satisfied, to a legal certainty, that Mr. Moore would not able to meet the
statutory minimum for diversity of citizenship jurisdiction. In a separate order, the

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Court held that as for the plaintiff's remaining claim under 42 U.S.C. § 1915(b)(2),
there were state remedies to aid him in recovering money improperly withdrawn from
his prison account; therefore, the claim was dismissed. Mr. Moore appealed.

                                      II. Analysis

       We review a district court's grant of summary judgment de novo. Anderson v.
Franklin County, 192 F.3d 1125, 1131 (8th Cir. 1999). Summary judgment is proper
only when there is no genuine issue of material fact and the moving party is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(c). We have long recognized an
inmate’s cause of action for retaliatory discipline under 42 U.S.C. § 1983 where a
prison official files disciplinary charges in retaliation for the inmate’s exercise of his
constitutional rights. See Sprouse v. Babcock, 870 F.2d 450, 452 (8th Cir. 1989).
However, claims of retaliation fail if the alleged retaliatory conduct violations were
issued for the actual violation of a prison rule. Henderson v. Baird, 29 F.3d 464, 469
(8th Cir. 1994), cert. denied, 515 U.S. 1145 (1995). Thus, a defendant may
successfully defend a retaliatory-discipline claim by showing “some evidence” that the
inmate actually committed a rule violation. Goff v. Burton, 7 F.3d 734, 738 (8th Cir.
1993), cert. denied, 512 U.S. 1209 (1994); see also Superintendent v. Hill, 472 U.S.
445, 455 (1985).

       On appeal, plaintiff asserts that the District Court erred in granting summary
judgment on his retaliation claims, his access-to-the-courts claim, and his 28 U.S.C. §
1915(b) claims. He further contends that the Court erred in (1) holding that he failed
to establish by a preponderance of the evidence that he could meet the statutory
requirement for diversity of citizenship jurisdiction, (2) dismissing his constitutional
challenges to 28 U.S.C. § 1915A and 42 U.S.C. § 1997e(a), and (3) ruling on several
discovery motions. We agree that the Court erred in granting summary judgment on
Mr. Moore’s retaliatory-discipline claims. In all other respects, we affirm.



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                           A. Retaliatory Discipline Claims

       There are three claims of retaliatory discipline at issue, one in September of
1996, one in February of 1997, and another in March of 1997. Plaintiff contends that
the District Court erred in holding that there was sufficient evidence to support the
disciplinary committee’s determination that he had violated prison rules on those three
occasions. We agree. In our view, the record fails to contain “some evidence” that the
disciplinary actions taken against Mr. Moore were for the actual violation of prison
rules.

      A conduct violation report completed by Investigator Plaster regarding the
February 1997 conduct charge states,

      Connie Martin, visitor of inmate Ricky McCabe . . . was found to be in
      possession of narcotics inside [Jefferson City]. An investigation of this
      incident revealed that inmate Edward Moore conspired to have the
      narcotics brought into [Jefferson City]. This places inmate Edward
      Moore . . . in violation of rule #11 (Conspiracy to introduce narcotics into
      a correctional facility[)] [sic]. For further information see investigation
      file located in the [Jefferson City] Investigator’s Office.

Defendants’ Motion for Summary Judgment and Suggestions in Support, Exhibit E, at
1. Neither the referenced investigative file nor a summary of its contents appears in the
record. There is no other information regarding any of the underlying facts in the
record. All we have is Mr. Plaster's report. It contains accusations, but is not based
on personal knowledge. It does not even give the name of any witness who saw the
alleged violation. In our opinion, this report is only an accusation. It does not qualify
as "evidence."

       As to the September 1996 disciplinary charge, the record contains a conduct
violation report prepared by Investigator David Williams which states,



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       It has discovered [sic] through investigation that inmate Moore, Edward
       . . . has been trafficking narcotics in [Jefferson City]. For further
       information, see confidential file #204 in the investigator[’]s office.

       Inmate Moore was also administered a “CVSA” exam, or lie detector
       test, by investigator Sam Plaster, about his involvement in drug trafficking
       in [Jefferson City]. Investigator Plaster stated that inmate Moore failed
       the CVSA exam. For further information see investigator Plaster[’]s
       report.

Defendants’ Motion for Summary Judgment and Suggestions in Support, Exhibit C, at
5. A disciplinary action report states that some of the evidence relied on in finding Mr.
Moore guilty was the observations of the reporting officer (we assume this means
Investigator Williams) and his “statement that [Mr. Moore was] trafficking in
controlled substances within the institution.” Id. at 7. No other evidence regarding the
underlying facts appears in the record.

       We do not believe such conclusory statements, without more, constitute “some
evidence” of plaintiff's having violated prison rules, especially in light of his claim that
Investigator Plaster told him that the rule 11 charges were in retaliation for his
grievances and civil actions against Investigator Plaster. Mr. Moore also claims that
he passed the lie detector test, but Investigator Plaster indicated that the test results
showed deception. There appears to be an issue of fact as to what the test showed.
Ordinarily the Investigator's statement of the test results would be "some evidence," but
here that very statement is itself alleged to be retaliatory. The disciplinary action report
refers to "observations" by Investigator Williams, but the context indicates that
"observe" is being used in the sense of "said," not "saw." Again, the conduct violation
report is an accusation only. It is not evidence. The "confidential file" referred to is
not in the record before us.

      This case is distinguishable from other cases in which we have found that “some
evidence” supported the challenged disciplinary action. See Cowans v. Warren, 150


                                            -7-
F.3d 910, 912 (8th Cir. 1998) (plaintiff’s complaint containing abusive language was
“some evidence” of a violation of a rule against using abusive language); Earnest v.
Courtney, 64 F.3d 365, 367 (8th Cir. 1995) (per curiam) (officer’s affidavit,
disciplinary report, and reliable confidential informants were “some evidence” of a rule
violation); Henderson, 29 F.3d at 469 (prison officer’s undisputed first-hand account
of inmate’s misconduct was “some evidence” of a violation); Orebaugh v. Caspari, 910
F.2d 526 (8th Cir. 1990) (plaintiff's admission to committing the offensive conduct was
"some evidence" of actual rule violation); Brown v. Frey, 807 F.2d 1407, 1414 (8th
Cir. 1986) (prison officials’ memorandum implicating plaintiff as a participant in a
prison riot to which they were witnesses was “some evidence” of rule violation);
Russell v. Hopkins, 76 F.3d 382, 1996 WL 47128, at *1 (8th Cir. Feb. 7, 1996) (per
curiam) (unrebutted evidence of rule change disallowing possession of razor blades
constituted “some evidence”); Green v. Lombardi, 36 F.3d 1100, 1994 WL 521105,
at *1 (8th Cir. Sept. 26, 1994) (per curiam) (evidence found in plaintiff’s cell, canteen
records, and inmate’s grievance was “some evidence” of actual infraction).

       We do not hold that the disciplinary committee, on either occasion, did not have
sufficient evidence at the disciplinary hearing to determine that Mr. Moore had
violated prison rules. Perhaps defendants on remand can produce such evidence. We
hold only that the record, as presented on appeal, lacks any evidence that the
disciplinary action was warranted.

       As to Mr. Moore’s claim that his placement in TASC in March of 1997 was
retaliatory, we think that a similar outcome is appropriate. The record shows that one
of the reasons for confinement was an alleged rule 11 violation, but no evidence to
support the accusation appears.




                                           -8-
                        B. Meaningful Access to Courts Claim

      Mr. Moore argues that while he was in TASC he was denied access to legal
research material and trained legal assistance. He claims that as a direct result one of
his pending appeals was dismissed and another case was dismissed because he was
unable to file an adequate reply brief.

      To succeed in an access-to-courts claim, a plaintiff must "demonstrate that a
nonfrivolous legal claim had been frustrated or was being impeded," Johnson v.
Missouri, 142 F.3d 1087, 1089 (8th Cir. 1998 ) (quoting Lewis v. Casey, 518 U.S. 343,
353 (1996)), and that he has suffered an actual injury. Klinger v. Department of
Corrections, 107 F.3d 609, 617 (8th Cir. 1997). Here, Mr. Moore has not made a
showing that either of his dismissed cases was nonfrivolous.

                                     C. Other Claims

      As to Mr. Moore’s other federal claims, we think that summary judgment was
proper. Mr. Moore may use state-law remedies to recover money that was improperly
deducted from his prison account. See Wilson v. Schriro, 952 S.W.2d 806, 807 (Mo.
App. 1997) (per curiam) (prison inmate filed replevin action to recover money taken
from his prison account). Likewise, we have upheld the constitutionality of 28 U.S.C.
§ 1915A. See Murray v. Dosal, 150 F.3d 814 (8th Cir. 1998), cert. denied, 526 U.S.
1070 (1999); Lyon v. Krol, 127 F.3d 763 (8th Cir. 1997).

       Similarly, we find no error in the Court’s determination that Mr. Moore did not
demonstrate by a preponderance of the evidence that his state-law claims met the
statutory minimum to establish diversity of citizenship jurisdiction. See Missouri ex
rel. Pemiscot County v. Western Surety Co., 51 F.3d 170, 173 (8th Cir. 1995) (holding
that if “the court is satisfied to a [legal] certainty that the plaintiff never was entitled to
recover that amount, . . . the suit will be dismissed") (alteration in original) (citation and


                                             -9-
internal quotation omitted). Nor do we think that the Court abused its discretion in
ruling on the contested discovery motions.

                                  III. Conclusion

       The judgment of the District Court as to Mr. Moore’s claims of retaliatory
discipline is reversed, and the case remanded for further proceedings consistent with
this opinion. As to Mr. Moore’s other assignments of error, the judgment of the
District Court is affirmed.

      It is so ordered.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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