                    IN THE UNITED STATES COURT OF APPEALS
                                 FOR THE FIFTH CIRCUIT

                                   _____________________
                                        No. 99-30509
                                   _____________________

       BILLY SINCLAIR,
                                                            Plaintiff-Appellant,
                                             versus

       PAUL FONTENOT, ET AL.,

                                                            Defendants,

       PAUL FONTENOT,
                                                            Defendant-Appellee.

           _______________________________________________________

                   Appeal from the United States District Court for
                          the Middle District of Louisiana
                              (D.C. No. 95-CV-304-C)
           _______________________________________________________
                                   May 18, 2000

Before REAVLEY, SMITH and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*
       Billy Sinclair appeals the judgment in favor of Paul Fontenot, individually and in
his official capacity as Superintendent of the Louisiana Department of Public Safety. The

district court granted Fontenot’s motion to dismiss pursuant to Rule 12(b)(6). We reverse
and remand.
       Sinclair has been incarcerated in Louisiana since his conviction and death sentence

   *
    Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
for murder in 1966. Sinclair’s death sentence was converted to a sentence of life in
prison following the Supreme Court decision in Furman v. Georgia, 408 U.S. 238 (1972)

ruling the application of the death penalty unconstitutional. In 1992, Louisiana Governor
Buddy Roemer commuted Sinclair’s sentence to a maximum of ninety years.
       In 1986 Sinclair cooperated with a federal investigation into pardons for sale in the

Louisiana prison system. Federal Marshals removed Sinclair from the prison system as a
protected witness because his exposure of corruption within the prison system rendered
his life in danger. Sinclair was transferred to the State Police Barracks where he

remained in custody until the events giving rise to this lawsuit in November, 1994.

       Sinclair’s claim of retaliation in this lawsuit has its origins in his efforts to obtain

release on parole. Following the commutation of sentence by Governor Roemer, Sinclair
sought consideration for parole. The parole board refused to grant a hearing. After two

years of litigation, Sinclair obtained a court order compelling a parole hearing, which

took place in July of 1994. Parole was denied and Sinclair brought a habeas suit in

Louisiana state court challenging the denial of his parole. The claim remaining in this
lawsuit alleges that Fontenot ordered Sinclair transferred from the Barracks in retaliation

for Sinclair’s maintenance of this state court habeas lawsuit.

       PROCEDURAL HISTORY
       Sinclair, proceeding pro se, filed this lawsuit on March 13, 1995 against Fontenot,
Richard Stalder, and Fred Kennedy, in their personal and official capacities, alleging that

Sinclair’s November, 1994 transfer to the Louisiana prison system from the Barracks was
unlawful and that Sinclair was subjected to unconstitutional punishment after his transfer.
Sinclair sought damages, an injunction, and declaratory relief.

       The defendants moved to dismiss the complaint under Rule 12(b)(6). In his


                                               2
objections to the magistrate judge’s recommendation, Sinclair alleged for the first time
that Fontenot transferred Sinclair in retaliation for Sinclair’s state court habeas lawsuit.

The district court granted the motion to dismiss and Sinclair appealed to this court. This
court affirmed in part, vacated in part, and remanded, holding that the district court
abused its discretion in failing to treat the objection to the magistrate judge’s report as a

request for leave to amend the complaint. We stated:
       The order dismissing Sinclair’s claim that Fontenot retaliated against him
       for exercising his right of access to the court is VACATED and the case is
       REMANDED to the district court for further consideration of this claim.

On remand Sinclair requested leave to amend and filed a proposed 23-page complaint

against Kennedy, Stalder and Fontenot alleging several theories of retaliation and other

claims.
       The magistrate judge declined to rule on Sinclair’s request for leave to amend until

after Fontenot filed a second 12(b)(6) motion to dismiss. On March 15, 1999, the

magistrate judge recommended dismissal, quoting from Sinclair’s proposed amended

complaint to demonstrate that Sinclair alleged several motivations of the several
defendants, holding as a result that Sinclair failed to allege that retaliation for his habeas

suit constituted the but-for motivation of his transfer. On the same day the magistrate

judge ruled on Sinclair’s request for leave to amend, stating:
       this Court concludes that the mandate of the Fifth Circuit limits the
       plaintiff’s claim herein solely to a claim of retaliation against him in
       response to the plaintiff’s “suit challenging the denial of his parole. ... The
       appellate court vacated the Judgment of the district court only with respect
       to “this claim” against defendant Fontenot and affirmed in all other respects
       the lower court’s ruling, including the dismissal of the remaining
       defendants and dismissal of all claims for retaliation except the claim
       against defendant Fontenot “for filing suit a suit challenging the denial of
       his parole”. Accordingly, the dismissal of the plaintiff’s claims against
       defendants Stalder and Kennedy is now final as is the dismissal of all
       claims against Fontenot except for the above-stated claim of retaliation.


                                               3
The district court granted Fontenot’s motion to dismiss under rule 12(b)(6) and this
appeal ensued.

       LEAVE TO AMEND
       The magistrate judge correctly interpreted our prior remand to restrict the case to
the claim against Fontenot alleging retaliation for Sinclair’s state habeas lawsuit

challenging denial of parole. It is understandable that Sinclair, proceeding pro se in a
relatively complex constitutional claim, misunderstood our prior remand to permit him to
seek leave to amend more broadly; however, the magistrate judge’s report on the motion

to dismiss improperly penalized Sinclair by using his additional claims for relief to justify

dismissal. The allegations cited by the magistrate judge to justify the dismissal were

additional grounds for which leave to amend was not granted and therefore were not
properly before the court. Where leave to amend is only partially granted, only that

portion of the complaint for which leave to amend has been granted should be used to

determine a motion to dismiss under rule 12(b)(6).

       FAILURE TO STATE A CLAIM
       “To state a claim of retaliation, an inmate must allege the violation of a specific

constitutional right and be prepared to establish that but for the retaliatory motive the

complained of incident ... would not have occurred.” Woods v. Smith, 60 F.3d 1161,
1166 (5th Cir. 1995). This but-for requirement is satisfied by alleging a “chronology of
events from which retaliation may be plausibly inferred.” Id. Sinclair’s proposed

amended complaint alleges that on two occasions Barracks Warden Fred Kennedy
suggested that Sinclair drop his habeas action because Fontenot would order Sinclair
transferred from the barracks “if the pressure gets too hot.” Sinclair alleges that one of

these warnings took place in the presence of Classification Officer Riis Suire. Sinclair


                                              4
further alleges:
              72. Plaintiff’s right of access to the courts, to have false information
       removed from the parole board files, and to expose wrongdoing in the
       prison system through the news media are protected by the First
       Amendment to the United States Constitution. Defendants Stalder and
       Fontenot violated plaintiff’s First Amendment rights with the November 30,
       1994 transfer from the Barracks.
       The same day that Sinclair attended a hearing on his habeas action, Fontenot
ordered him transferred from the Barracks. Fontenot claimed to justify the transfer based
upon observing Sinclair embrace his wife at her automobile after the hearing. However,

Sinclair alleges that his conduct did not violate any rule of the Barracks and that several
officials opposing the transfer informed Fontenot that Sinclair’s conduct was not

improper. The allegations that Sinclair complied with Barracks rules and Sinclair’s
support from Barrack’s officers suggest that Fontenot’s proffered reason for ordering the

transfer may have been a pretext. The allegations that Kennedy warned Sinclair that
Fontenot would order Sinclair transferred if he did not drop the habeas lawsuit are direct

allegations of retaliatory motive. These allegations are more than sufficient to establish a

“chronology of events from which retaliation may be plausibly inferred.”1 The

allegations in Sinclair’s amended complaint are sufficient to allege that Fontenot

retaliated against Sinclair for Sinclair’s exercise of his constitutionally protected right of

access to the courts and the district court erred in dismissing Sinclair’s complaint for
failure to state a claim for which relief can be granted.



   1
     In his objection to the magistrate judge’s report, Sinclair further alleged that, subsequent to
his request for leave to amend, his wife had several conversations with Kennedy and Suire in
which they “both implied in fairly direct terms that the lawsuit was the motivation for the
transfer.” In adopting the magistrate judge’s report, the district judge did not acknowledge
Sinclair’s request to amend his complaint to include these additional allegations. These
allegations obviously strengthen Sinclair’s complaint. However, even without the additional
allegations, Sinclair has pleaded sufficient facts to withstand dismissal under 12(b)(6).

                                                  5
       QUALIFIED IMMUNITY
       Fontenot urges the court to affirm the dismissal on the grounds of qualified

immunity, raised in the 12(b)(6) motion but not addressed by the magistrate judge’s
report. Fontenot argues that Sinclair’s right of access to the court was not clearly
established, entitling Fontenot to qualified immunity for a claim of retaliation. Qualified

immunity only protects state officials from liability for damages. Even if the grounds for
qualified immunity were established in this case, Sinclair’s complaint seeks declaratory
and injunctive relief for a transfer back to the Barracks. Qualified immunity does not

extend to suits for injunctive or declaratory relief under § 1983. Chrissy F. By Medley v.

Mississippi Dept. of Public Welfare, 925 F.2d 844, 849 (5th Cir. 1991). Sinclair alleges

that, because of his prior cooperation with investigations of corruption and pardons for
sale within the Louisiana prison system, his transfer from the Barracks places his life in

danger, which no doubt renders his claim for injunctive relief of primary importance to

his case.2

       Sinclair states a claim for damages in addition to his claims for injunctive and
declaratory relief; therefore we must determine whether qualified immunity protects

Fontenot from this claim. We do not agree that Sinclair’s right of access to the court was

not clearly established at the time of the transfer. Fontenot cites Johnson v. Rodriguez,
110 F.3d 299, 310-11 (5th Cir. 1997) for the proposition that a prisoner’s right of access
to the courts is not unlimited, but encompasses only “a reasonably adequate opportunity

to file nonfrivolous legal claims challenging their convictions or conditions of



   2
     We note that, for purposes of injunctive relief, the threat of being murdered while in prison
weighs the balance of hardships in Sinclair’s favor when compared to the possible inconvenience
of permitting him to remain in the Barracks.

                                                 6
confinement.” (Quoting Lewis v. Casey, 518 U.S. 343, 356 (1996)).3 Fontenot argues
that a habeas action challenging the denial of parole is not a challenge to a conviction or

condition of confinement and therefore is not within the ambit of protected access to the
court. We disagree because duration is one of the most important conditions of a
prisoner’s confinement.

       Casey distinguished a prisoner’s ability to “attack their sentences, directly or
collaterally, and ... challenge the conditions of their confinement” from “other litigating
capacity” such as “shareholder derivative actions to slip-and-fall claims” which may be

constitutionally impaired as an incidental consequence of incarceration. 518 U.S. at 355.

This court has recognized that because a habeas challenge to the duration of confinement

involves the prisoner’s liberty, such suits are more akin to attacks on confinement than to
§ 1983 suits concerning conditions of confinement and therefore are not subject to the

PLRA filing fee. Davis v. Fechtel, 150 F.3d 486, 490 (5th Cir. 1998). Given the priority

afforded to the prisoner’s liberty interest, we hold that Sinclair’s challenge to the denial

of parole is within the ambit of challenges to conviction or condition of confinement for
which access to the court is constitutionally protected, and does not constitute “other

litigating capacity” to which the right of access may be impaired. Casey, 518 U.S. at 355.

       This does not end our inquiry, because this protection only extends to nonfrivolous
litigation.4 Sinclair’s state habeas lawsuit challenged the denial of parole on the basis that

   3
     Although Fontenot’s decision to transfer Sinclair took place in 1994, Fontenot asserts the
subsequent decisions in Casey or Johnson as authority that Sinclair’s right of access was not
clearly established at the time of the alleged retaliation. Such argument is contrary to our 1995
opinion in Woods where we held that “[t]he law of this circuit is clearly established, and was so in
1990 ... that a prison official may not retaliate against or harass an inmate for exercising the right
of access to the courts.” 60 F.3d at 1164.
   4
    It is for the court hearing a lawsuit to determine whether or not litigation is frivolous. It is
important to note that the alleged retaliation occurred during the pendency of the state habeas
lawsuit and Fontenot is not constitutionally permitted to retaliate against Sinclair on the basis of

                                                  7
he met all the substantive criteria for rehabilitation under the Louisiana parole statute,
that the denial of parole itself constituted unlawful retaliation for his successful suit to

obtain a parole hearing, and that the denial was based upon false information contained in
Sinclair’s records. Sinclair v. Kennedy, 701 So. 2d 457, 458 (La. App. 1997). Sinclair
sought an order for release on parole and alternatively a new parole hearing. Id.5 The

Louisiana Court of Appeals considered Sinclair’s habeas suit challenging denial of parole
and ultimately determined that the statute did not afford judicial review of the procedure
or results of the parole board hearing. Sinclair, 701 So.2d at 462. Sinclair’s failure to

prevail on the merits of the habeas suit does not render it frivolous and the suit presented

substantial grounds for judicial consideration. We hold that Sinclair’s habeas suit was

nonfrivolous and we reject Fontenot’s claim that he was permitted to engage in retaliation
against Sinclair for pursuing the habeas action.

       We reverse the dismissal and remand to the district court so that Sinclair may

proceed with discovery.

REVERSED AND REMANDED




Fontenot’s own belief about the merits of the lawsuit.

        Sinclair obtained another parole hearing in 1999 on the basis that his prior hearing had
considered records containing erroneous information. Chris Frink, Board grants Billy Wayne
Sinclair new parole hearing, Baton Rouge Advocate, January 22, 1999, at B3. Online at Baton
Rouge Advocate Online, <http://www.theadvocate.com/archive/story.asp?storyid=14511>.

                                                8
EMILIO M. GARZA, Circuit Judge, concurring in part and dissenting in part,
       The majority rejects Fontenot’s claim of qualified immunity because, in its view:

(1) the constitutional right to file a state habeas petition challenging the denial of parole
was “clearly established” in 1994 and (2) despite the fact that Louisiana state law
expressly precludes judicial review of parole decisions, Sinclair’s state habeas petition

challenging the denial of parole was not frivolous. I disagree with both propositions.
Accordingly, I dissent in part.6
       Qualified immunity “provides ample protection to all but the plainly incompetent

or those who knowingly violate the law.” Hare v. City of Corinth, 135 F.2d 320, 325 (5th

Cir. 1998). Under the umbrella of qualified immunity, Fontenot is protected from a suit

for damages unless the law giving Sinclair a constitutional right to file a lawsuit
challenging the denial of parole was “clearly established” such as to alert him that his

actions violated Sinclair’s constitutional rights. Accordingly, as the majority notes, we

must examine whether the right to file a suit challenging the denial of parole was a

“clearly established” constitutional right when Fontenot allegedly violated it in 1994. See
Shipp v. McMahon, 199 F.3d 256, 262 (5th Cir. 2000) (“[T]he face of plaintiff’s pleadings

must articulate a clearly established right at the time of the

alleged violation.”).7

   6
        I agree with the majority that the district court erred in dismissing Sinclair’s claim under
Rule 12(b)(6) and that the court unfairly penalized Sinclair for arguing issues outside our earlier
remand order. I also agree with the majority that, to the extent Sinclair sought injunctive relief as
opposed to monetary damages, qualified immunity does not protect Fontenot. See Orellana v.
Kyle, 65 F.3d 29, 33 (5th Cir. 1995) ("Neither absolute nor qualified immunity extends to suits for
injunctive or declaratory relief under §1983.") (citing Chrissy F. v. Miss. Dep't of Pub. Welfare,
925 F.2d 844, 849 (5th Cir.1991)).
   7
        As only pre-1994 law is relevant to this determination, we must analyze the “clearly
established” question as if the Supreme Court’s subsequent decision in Lewis v. Casey, 518 U.S.
343, 356, 116 S. Ct. 2174, 135 L. Ed. 2d 606 (1996), and our decision in Johnson v. Rodriguez,
110 F.3d 299, 311 (5th Cir. 1997), did not exist. The majority, while on one hand recognizing that

                                                  9
        The “clearly established” threshold is not easily satisfied. As we have previously
stated, “[f]or qualified immunity to be surrendered, pre-existing law must dictate, that is,

truly compel (not just suggest or allow or raise a question about), the conclusion for every
like-situated, reasonable government agent.” Pierce v. Smith, 117 F.3d 866, 992 (5th Cir.
1997); see also Shipp, 199 F.3d at 262 (“[T]he right is clearly established if based on pre-

existing law, the unlawfulness of the conduct in question is apparent.”). In this inquiry,
“[t]he Fifth Circuit does not require that an official demonstrate that he did not violate
clearly established federal rights; [rather,] our precedent places that burden upon

plaintiffs.” Sorenson v. Ferrie, 134 F.3d 325, 330 n.10 (5th Cir. 1998) (citing Salas v.

Carpenter, 980 F.2d 299, 306 (5th Cir. 1992)).

        If Sinclair had a constitutional right to file a state habeas petition challenging the
denial of parole, it would arise from his First Amendment right of access to the courts.

See Bounds v. Smith, 430 U.S. 817, 821, 97 S. Ct. 1491, 52 L. Ed. 2d 72 (1977). In

Bounds, the Supreme Court held that prisoners have a constitutional right of access to the

courts which “requires prison authorities to assist inmates in the preparation and filing of
meaningful legal papers by providing prisoners with adequate law libraries or adequate

assistance from people trained in the law.” Id. at 828, 97 S. Ct. 1491 (emphasis added).

However, Bounds by no means delineated the scope of prisoner’s right of access to the
courts, and the “meaningful legal papers” restriction made clear that this right was not
unlimited. This point is crystallized by Justice Powell’s concurring opinion, which

described that: “The decision today recognizes that a prison inmate has a constitutional



qualified immunity is only sacrificed if Sinclair’s right to file this suit was clearly established in
1994, on the other hand uses post-1994 caselaw to reject Fontenot’s qualified immunity
arguments. As our cases make clear, this is inappropriate. See Woods v. Smith, 60 F.3d 1161,
1166 (5th Cir. 1995).

                                                   10
right of access to the courts to assert such procedural and substantive rights as may be
available to him under state and federal law.” Id. at 832, 97 S. Ct. 1491 (Powell, J.,

concurring).
       As described in the majority opinion, cases subsequent to Fontenot’s actions have
clarified the scope of prisoners’ constitutional right of access to the courts.8 However,

neither Sinclair nor the majority cites any relevant authority preceding Fontenot’s actions
which supports their claim that the right to file suit challenging the denial of parole was
“clearly established” at the time Fontenot allegedly violated it. As the burden to prove

the existence of this clearly established right at that time is on Sinclair, see Sorenson, 134

F.3d at 330, and Sinclair provides nothing indicating that the right existed at that time,

Sinclair has failed to satisfy his burden. Accordingly, qualified immunity should protect
Fontenot here.

       Furthermore, even assuming that the procedural right to file suit challenging the

denial of parole was clearly established in 1994, Fontenot should be protected by

qualified immunity because Sinclair’s lawsuit was clearly frivolous. Louisiana state law
expressly makes decisions of the parole board unreviewable. See LA. REV. STAT. ANN.

15:574.11.A (“Parole is an administrative device for the rehabilitation of prisoners under

supervised freedom from actual restraint, and the granting, conditions, or revocation of
parole rest in the discretion of the Board of Parole. No prisoner or parolee shall have a


   8
        As the majority opinion notes, cases subsequent to Bounds establish a distinction between
those suits challenging “convictions or the conditions of confinement,” which are encompassed in
the right of access to the courts, and “secondary litigation activity,” which is not. See Casey, 518
U.S. at 355, 116 S. Ct. 2174; Johnson, 110 F.3d at 311. However, as described above, the
majority errs in considering Casey and Johnson, which cannot be used to evaluate what was
“clearly established” law in 1994 as they had yet to be decided. Even if they were relevant,
furthermore, I would disagree with the majority’s conclusion. It is simply unclear whether suits
challenging the denial of parole are within the category of protected lawsuits, especially in a state
(such as Louisiana) where such suits are precluded by state law.

                                                 11
right of appeal from a decision of the board regarding release.”) (emphasis added).
Thus, unless this statute is unconstitutional (and Sinclair does not argue that it is), any

challenge to the denial of parole, by state habeas petition or otherwise, would be
summarily rejected.
       As the majority notes, the Louisiana Court of Appeals considered Sinclair’s state

habeas petition and held that it lacked jurisdiction to consider the petition because
judicial review of parole board decisions was precluded by statute. See Sinclair v.
Kennedy, 701 So. 2d 457, 458 (La. Ct. App. 1997). The majority opines that “Sinclair’s

failure to prevail on the merits of the habeas suit does not render it frivolous and the suit

presented substantial grounds for judicial consideration.” However, regardless of

whether Sinclair’s underlying claims had merit, the suit he filed was frivolous because the
court in which he filed the suit was precluded by state law from considering them.

See LA. REV. STAT. ANN. 15:574.11.A (“No prisoner or parolee shall have a right of

appeal from a decision of the board regarding release.”); Sinclair, 701 So. 2d at 459

(“[N]o prisoner has the right to appeal a decision of the parole board regarding the
granting or denial of parole.”). The fact that the state habeas court did not reach the

merits of Sinclair’s claims because it was barred from considering them in and of itself

establishes the frivolity of the lawsuit.
       Accordingly, as the procedural constitutional right to file suit challenging a parole
board decision was not clearly established in 1994, and as Sinclair’s suit was frivolous

even if this procedural right existed, I believe Fontenot was entitled to qualified
immunity. I dissent in part.




                                              12
