                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                November 18, 2004
                       _____________________
                                                         Charles R. Fulbruge III
                            No. 03-40600                         Clerk
                       _____________________

                        DAVID GENE MORRIS,

                       Plaintiff - Appellee,

                               versus

                      CHRISTY POWELL, ET AL.,

                            Defendants,

 CHRISTY POWELL; CHARLES POWELL, Major; ANDY MASSINGILL, Warden,

                     Defendants - Appellants.
_________________________________________________________________

           Appeal from the United States District Court
           for the Eastern District of Texas, Texarkana
                District Court Cause No. 99-CV-263
_________________________________________________________________

Before REAVLEY, BENAVIDES and PRADO, Circuit Judges.

PER CURIAM.1

     David Gene Morris sued several employees of the Texas

Department of Criminal Justice (TDCJ) for retaliation.      In the

district court, the TDCJ employees moved for summary judgment

based on qualified immunity.   The district court determined that

material issues of fact precluded summary judgment and denied the

motion.   The TDCJ employees appeal the district court’s denial of


     1
      Pursuant to 5TH CIRCUIT RULE 47.5, this Court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIRCUIT
RULE 47.5.4.

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summary judgment.

     In this appeal, the Office of the Texas Attorney General

(AG), acting on behalf of the TDCJ employees, asks this court to

establish a new rule of law.   Specifically, the Texas AG asks

this court to require an inmate bringing a retaliation claim to

show that he suffered a more than de minimis adverse act.   The

Texas AG argues that this requirement would avoid endless

litigation, assure that prisoners do not insulate themselves from

disciplinary action by claiming retaliation, and avoid judicial

involvment in minor disciplinary acts.   The Texas AG maintains

that requiring a more than de minimis retaliatory act would help

the courts screen inmate retaliation cases.

     The Texas AG advanced this argument twice before the

district court—first in its motion for summary judgment and again

in its motion for reconsideration—but the district court did not

address the argument.   Because the de minimis argument was not

the Texas AG’s main argument before the district court, this

court cannot determine whether the district court declined to

address the argument or whether the district court failed to

address the argument through inadvertence.    The district court,

nevertheless, deserves the first consideration of the argument.

Although this court will affirm a judgment on a ground not relied

on by the district court,2 this court does not ordinarily reverse

     2
      See Johnson v. Sawyer, 120 F.3d 1307, 1316 (5th Cir. 1997)
(explaining that this court can affirm a summary judgment on

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a district court on a ground it did not rely upon.   Reversing on

an unrelied-upon basis deprives the district court of the

opportunity to squarely address the issue and to develop a more

complete record on the disputed matter.   For that reason, this

court REMANDS this case to the district court for consideration

of this argument.   Because the Texas AG’s remaining arguments

rely on fact questions over which this court lacks jurisdiction,

the court DISMISSES the appeal to the extent that the appeal is

based on those fact questions.

APPEAL DISMISSED; CASE REMANDED.




grounds not relied on by the district court if those grounds were
asserted in that court by the movant).

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