              United States Court of Appeals
                         For the Eighth Circuit
                     ___________________________

                             No. 12-1532
                     ___________________________

                              Randy G. Spencer

                    lllllllllllllllllllll Plaintiff - Appellant

                                        v.

                Jackson County Missouri; Kenneth Conley

                         lllllllllllllllllllll Defendants

                         Carter; Williams; Anthony

                  lllllllllllllllllllll Defendants - Appellees

                               Nurse Jane Doe

                         lllllllllllllllllllll Defendant
                                 ____________

                  Appeal from United States District Court
             for the Western District of Missouri - Kansas City
                              ____________

                      Submitted: September 26, 2013
                        Filed: December 26, 2013
                              ____________

Before MURPHY, MELLOY, and SHEPHERD, Circuit Judges.
                          ____________
MURPHY, Circuit Judge.

       Randy G. Spencer filed this action under 42 U.S.C. § 1983 against Jackson
County, Missouri and employees in its dete ntion center, alleging violation of his
constitutional rights by Margo Carter, the supervisor of the inmate worker program,
and case managers Gale Anthony and Brenda Williams. The district court granted the
defendants' motion for summary judgment. Spencer appeals the dismissal of his First
Amendment claims. After carefully reviewing the record, we reverse and remand.

                                         I.

       On this appeal fromthe grant of defendants' motion for summary judgment, we
view all facts in the light most favorable to plaintiff Randy Spencer. Spencer was
booked into the detention center in Janua ry 2005 on charges of tam pering with a
motor vehicle, assaulting a police officer, stealing over $750, and resisting arrest.
Spencer's prior criminal record included a number of past charges of second degree
burglary, stealing over $150, and parole violation. He was described in his detention
center inmate worksheet as "[m]ature, cooperative, [and] non aggressive."

       Spencer was approved for the detention center's Inmate Worker Program(IWP),
also known as the "trustee program ," on February 14, 2005. Inmates in the trustee
program receive job assignments within the detention center and ar e paid for each
shift, with an opportunity to earn m ore for additional work. They also receive a
number of privileges and incentives. They are housed in a trustee m odule and are
eligible for late nights, weekend contact visitation rewards, and access to popcorn,
soda, and a m ovie player. One of Spencer's work assignments in 2005 was in the
kitchen; inmates assigned to the kitchen eceive extra food and m have one meal per
                                         r                      ay
work day in the break room area.




                                        -2-
       According to Spencer, he and h is program supervisor Margo Carter (then
Margo Hurse) had a good relationship during 2005 stay in the IWP. After Spencer
                                              his
participated in a question and answer sessi for a university crim justice seminar,
                                          on                      inal
Carter wrote him a letter on April 18 stating that she "sincerely want[ed] to thank"
Spencer for his participation in the IWP a wished him "luck in [his] future lifelong
                                          nd
endeavors." Spencer left the IWP in la te April 2005 to ente r a drug and alcohol
treatment program which he successfully completed in May. He then requested
reentry to the trustee program. His case manager, MarvinWalker, congratulated him
on his completion of the treatment program and wrote that he would "get [him] back
in the [trustee] program A.S.A.P." Spen cer was again approved f or the trustee
program and remained in it until he left the detention center in June 2005.1

       Spencer filed a lawsuit ag ainst Carter and other employees of the detention
center in 2006, alleging that hehad received inadequate m edical and dental care there,
lack of response to his requests and grie vances, and retaliation by Carter. Spencer
asserts that Carter received notice of the action because he sent her "interrogatories,
requests for admissions and production of documents requests."

        On October 17, 2009 Spencer returnedto the detention center on a new charge
of stealing over $750. He wa at this time 53 years old and aside fromthe new charge
                              s
his criminal record was the same as in 2005. He was again approved for the trustee
program. Then on October 28, Spencer spoke to Carter while she was investigating
an incident that occurred inthe trustee module. Spencer claims that Carter recognized
his voice and face during this conversation, durng which he told her he was sorry for
                                                i
filing the lawsuit and expressed the hope hecould stay in the trustee program Carter
                                                                              .
replied, "I don't know." Then, in "what seem[ed] like only a few seconds," Carter
came to tell him that he was being terminated from the program. Spencer was then

      1
        The record is not clear as to the reas n for Spencer's transfer in June 2005, but
                                              o
it was likely related to the disposition of th charges for which he was adm
                                             e                                itted to the
detention center in January 2005.

                                           -3-
terminated and moved from the trustee module to H module, a housing area without
the special features of the trustee program.

       One day after being terminated from the trustee program Spencer submitted a
Request for Administrative Remedy form (known as a "JPO"), which is generally
required before filing a form grievance, asking Carter to "reconsider [her] decision."
                             al
He wrote that "you wouldn't have even known about it had I not said something and
I did that out of my heart because I was concerned if you were mad[] at me and that
was because I thought we were friends at one time." Carter responded that "due to
your past charges, behavior and actions you can not return to the I.W.P."

       Carter later asserted in anaffidavit that she had removed Spencer from the IWP
"due to his penitentiary tim past behavior and actions inthe [detention center]." She
                            e,
stated that she had reviewed his criminal history "and learned that he had a prior
history involving stealing, tampering with a motor vehicle, assault on a police officer,
resisting arrest and burglary in the 2nd degree." Spencer filed another JPO on
November 4 stating that Carter had retali ated against him for filing a lawsuit by
removing him from the program. Although the JPO was addressed to the detention
center director, Carter signed the response which stated that "Lt. Carter was correct
by reviewing your files + case management notes to remove you from the program."

       Spencer submitted JPOs on Novem ber 9 and 10 to the inm ate services
administrator and to his H m odule case manager, Gale Anthony, requesting
information on exhausting the grievance pr cedure. Anthony responde to both JPO
                                          o                          d            s,
writing "OK." Spencer sent another JPO on November 16, requesting a grievance
form "regarding Lt. Carter retaliating agains t me." He also stated that he had
previously written three JPOs on separate issues and had not received responses; he
again requested grievance forms. As Spencer's case manager, Anthony was required
under the center policy to give him formal grievance form when requested. Anthony
                                   a
responded that Spencer would have to fill out the JPOs again. Spencer sent a JPO to

                                          -4-
Anthony on November 17, again requesting four grievance forms. Anthony replied,
"[w]rite reasons why you want a grievance form." Spencer then filed three JPOs on
November 20 regarding his prior com   plaints, stating in each that Anthony had refused
to give him grievance form s. Alt hough the JPOs were a ddressed to various
individuals, Anthony responded to all three, writing in one response that she "didn't
refuse to give [Spencer] a grievance form" and that she told himto write to a different
department.

       Spencer filed a formal grievance form against Carter on November 23, stating
that she had retaliated against him and that Anthony "tried to deny me this grievance
for weeks." The next day Anthony            entered "available cell" on a housing
reclassification form and Spencer was transferred to D m odule from H m odule.
Spencer complains that "H Module is basically for older inmates like myself" while
D module houses "younger, aggressive inmates." Spencer reports that after he was
moved to D module, another prisoner told him that an inmate "had recently been beat
real bad in the module." On November 25 Spencer sent a JPO to Brenda Williams,
his new case manager in D module, asking for four grievance forms because he "went
through the JPO process at least twice withno satisfactory results." Williams replied
that Spencer's grievances were resolved and "you do not have to aggree [sic] to the
answers given you, but they are per policy and CM will not be issuing you another
grievance form." Spencer asserted that on November 30, Williams and a guard came
to D m odule and led him into the hall. While holding Sp encer's JPO, William s
advised him that she and Anthony had moved him to D module and that he "wasn't
going to get any grievance forms."

       Spencer filed this action in February2011 under 42 U.S.C. §1983. The district
court dismissed his claims against Jackson County, detention center director Kenneth
Conley, and unidentified nurse "Jane Doe." The sum mary judgment motion of
defendants Carter, Anthony, and Williams was later granted on Spencer's claims of
retaliation in violation of his First Amendment rights. Spencer appeals.

                                         -5-
                                           II.

       Spencer argues that the district court erred in granting summary judgment on
his claims of retaliation in violation of his First Amendment rights. We review de
novo a grant of sum   mary judgment, Sisneros v. Nix, 95 F.3d 749, 751 (8th Cir. 1996),
and affirm only if there is "no genuine dis ute as to any material fact" and the moving
                                           p
party is entitled to judgment as a matter of law, Fed. R. Civ. P. 56(a). We view "the
facts in the light m ost favorable to th e nonmoving party and giv[e] that party the
benefit of all reasonable inferences that can be drawn from the record." Marlowe v.
Fabian, 676 F.3d 743, 746 (8th Cir. 2012).

       In order to demonstrate retaliation in violation of the First Amendment under
42 U.S.C. § 1983, Spencer must "show (1) he engaged in a protected activity, (2) the
government official took adverse action against him that would chill a person of
ordinary firmness from continuing in the activity, and (3) the adverse action was
motivated at least in part by the exercise of protected activity." Revels v. Vincenz
                                              the                                        ,
382 F.3d 870, 876 (8th Cir. 2004) (citingNaucke v. City of Park Hills, 284 F.3d 923,
927–28 (8th Cir. 2002)). The retaliatory c onduct itself need not be a constitutional
violation; the violation is acting in retaliation for "the exercise of a constitutionally
protected right." Cody v. Weber 256 F.3d 764, 771 (8th Ci . 2001) (citing Madewell
                                  ,                            r
v. Roberts, 909 F.2d 1203, 1206–07 (8th Cir. 1990)). The district court treated
Spencer's claims as being for retaliatory di scipline, against which prison officials may
successfully defend by "showing some evidence' the inmate actually committed a rule
                                    '
violation." Hartsfield v. Nichols, 511 F.3d 826, 829 (8th Cir. 2008) (citing Goff v.
Burton, 7 F.3d 734, 738–39 (8th Cir. 1993)). Spencer does not allege retaliatory
discipline, however, nor do defendants claim that Spencer violated any prison rules.
The "some evidence" standard thus does not apply here.

     Spencer argues first that Carter retaliated against him for filing his lawsuit by
removing him from the trustee program. It is well established that the right to file a

                                           -6-
legal action is protected under the First Amendment. Goff, 7 F.3d at 736. Adverse
actions which may show retaliation include denial of privileges, Revels, 382 F.3d at
876, or acts worsening an inm working conditions, Lewis v. Jacks 486 F.3d 1025,
                              ate's                                    ,
1029 (8th Cir. 2007). The key question is whet the actions weretaken in retaliation
                                               her
for engaging in protected activity. Spencers removal from the trustee program could
                                           '
potentially be found to be an adverse action resulting in his loss of access to income,
work opportunities, and housing advantages as well as other privileges.

       In order to succeed on his claim, Spencer must show that an adverse action
taken against him was "motivated at least in part" by his protected activity of filing a
lawsuit against deten tion center employees. Revels , 382 F.3d at 876. Spencer' s
removal from the trustee program occurred almost immediately after he rem inded
Carter about his having filed a lawsuit against her. At that time Spencer had already
been approved to enter the trustee program three different tim es. He was first
approved when he initially arrived at the detention center in February 2005, again
when he reentered in May 2005 after completing a drug treatment program, and for
the third time in October 2009 when he ente on a new charge. The only change in
                                            red
Spencer's record between 2005 and 2009 was October 2009 charge of stealing over
                                             his
$750, and Carter has not claim that that was a disqualifying offense for participation
                              ed
in the trustee program . Moreover, that charge had not prevented him from being
approved for entry into the trustee program in October 2009.

      Carter has not explained h ow Spencer became disqualified from the trustee
program when his record was essentially the same as when he entered it originally in
February 2005, except for the new charge which had not prevented him from being
readmitted in October 2009. Nor ha s she presented evidence that Spencer's record
changed between his October 2009 approval for the trustee program and his later
removal from that program. In a subsequent affidavit Carter claimed variously that
her decision had been based on Spencer' "extensive twenty five year history and prior
                                         s
violent history in the penitentiary system" and that it was his "penitentiary time, past

                                         -7-
behavior and actions in the Jackson Count Detention Center." She has however not
                                          y
shown why Spencer's preexisting record did not disqualify him from being in the
trustee program in 2005 or provided specifics of any disqualifying "behavior and
actions." Viewing the facts in the light mo favorable to Spencer, as we must on this
                                          st
motion for summary judgment, we conclude that there is a genuine dispute of m aterial
fact as to whether Carter's removal of Spencer from the trustee program in 2009 was
motivated by the lawsuit he had filed against her in 2006.

       Spencer further argues that Anthony a nd Williams retaliated against him for
filing grievances by subsequently transferring himfrom the H housing module to the
D module on November 24. An inmate has a First Amendment right to use prison
grievance procedures, and it has been establis in our circuit "for over twenty years"
                                             hed
that retaliatory actions for filing a pr ison grievance are actionable. Nelson v.
Shuffman, 603 F.3d 439, 449–50 (8th Cir. 2010). The module transfer here was an
adverse action because D module housed younger and more violent offenders than H
module according to Spencer's declaration. At the time of the transfer Spencer was
53 years old.

       In addition to proving the other elem of retaliation, Spencer must prove that
                                             ents
he would not have been transferred "but for an unconstitutional, retaliatory motive."
Goff, 7 F.3d at 738. Goff addressed transfers between prisons, and we have applied
the same standard to internal transf ers in a civil commitment case, Beaulieu v.
Ludeman, 690 F.3d 1017 (8th Cir. 2012). In Beaulieu, patients civilly committed in
the Minnesota Sex Offender Program alleged internal transfer in retaliation for
protected activity. 690 F.3d at 1024–27. Aninmate at the Missouri Sexual Offender
Treatment Center was sim ilarly required to show in his retaliation case that his
internal transfer "was causally relatedto [his] protected expression." Nelson, 603 F.3d
at 450.




                                         -8-
       We conclude that Spencer presented sufficient evidence to create a genuine
issue of material fact as to whether hewould have been transferred from H module to
D module but for his use of the grievance process. Spencer was transferred the day
after filing his form al grievance against Carter, in which he had com plained that
Anthony was obstructing his efforts to obtaingrievance forms. This timing is strong
evidence that he was transferred in retaliation, cf. Nelson, 603 F.3d at 450, and
defendants offered no nonreta liatory motive. The reclassification form signed by
Anthony stated only "available cell" without further direction. Moreover, Williams
told Spencer that she and Anthony had tran  sferred him and that he would not receive
grievance forms.

       Spencer also argues that Anthony and Williams retaliated against him for his
attempts to file a grievance against Car ter by obstructing his access t o the process.
Filing a prison grievance has long been "proected First Amendment activity," Lewis,
                                             t
486 F.3d at 1029, as has been the right of "access to the grievance process," Nelson,
603 F.3d at 450. Such retaliatory c onduct is actionable under § 1983. Id.; see also
Nei v. Dooley, 372 F.3d 1003, 1007 (8th Cir. 2004). Spencer' s attempts to seek a
remedy for his grievances through JPOs and to formal grievances are precisely the
                                               file
steps required by the detenti n center grievance policy for inm to follow. He thus
                             o                                 ates
was engaging in protected activity.

       Spencer presented evidence indicating that Anthony and Williamtook adverse
                                                                      s
action against him by obstructing his access to grievance process, such as delaying
                                               the
or refusing him requested forms. This evidence included Anthony' s directions to
Spencer to fill out additional JPOs and to"[w]rite reasons why you want a grievance
form" after he had requested a form multiple times. Anthony ultimately gave Spencer
only one formal grievance form even though he had requested four. This violated the
county's Formal Inmate Grievance Procedure which states that case m anagers will not
refuse to give inmates formal grievance forms even when the informal process has not
been exhausted. Spencer also presente d evidence that instead of furnishing the

                                         -9-
requested forms, Williams told him that all of his grievances had been resolved and
that she would not issue himanother form. Spencer further asserts that William came
                                                                              s
to his module accompanied by a guard and took him into the hallway to "intimidate"
him, telling him that he would not receive any more grievance forms.

      We conclude t hat Spencer presented a genuine issue of m aterial fact as to
whether the actions of Anthony and Williams were motivated at least in part by his
attempts to use the grievance procedure. Spencer presented evidence that Anthony
and Williams refused to give him grievance forms and were irritated by his use of the
grievance process. At one point for instance, Williams came in person accompanied
by a guard to tell Spencer that he would notreceive more forms. Based on this record
we conclude there is a genuine issue of material fact as to whether Anthony and
Williams acted in retaliation for Spencer's efforts to file grievances.

       The district court also granted qualified immunity to the defendants, and our
review is de novo. Davis v. Hall 375 F.3d 703, 711 (8th Cir. 2004). Public officials
                                   ,
are eligible for qualified immunity unless there are facts pled "showing (1) that the
official violated a statutory or constitutional right, and (2) that the right was 'clearly
established' at the time of the challenged conduct." Ashcroft v. al-Kidd, 131 S. Ct.
2074, 2080 (2011) (quoting Harlow v. Fitzgerald , 457 U.S. 800, 818 (1982)). The
right of an inmate to file a lawsuit is well established, Goff, 7 F.3d at 736, as is an
inmate's First Amendment right to access the prison grievance process, Nelson, 603
F.3d at 449–50. Since Spencer has raised genuine     issues of material fact as to whether
defendants violated his First Amendment rights, the district court's grant of qualified
immunity to the defendants was premature and must be reversed.



                                          III.




                                          -10-
       Accordingly, we reverse and reman d for further proceedings consistent with
this opinion.

SHEPHERD, Circuit Judge, dissenting in part.

      I agree with the majority that the grant of summary judgment with respect to
appellees Williams and Anthony should be reversed. However, I would find that
appellee Margo Carter has carried her burden on sum mary judgment and would
therefore affirm the grant of sum mary judgment with respect to Spencer’s claim s
against her.

       Carter has demonstrated that Spencer cannot establish an essential element of
his retaliation claim —namely that she took a sufficiently adverse action against
him—because Spencer was unqualified for the privileges he claims were denied to
him in violation of 42 U.S.C. § 1983. See Celotex Corp. v. Catrett , 477 U.S. 317,
322-23 (1986) (holding that the m oving party’s burden on a m otion for summary
judgment, in cases in which the ultim ate burden of persuasion at trial rests on the
nonmoving party, can be satisfied by dem   onstrating that the nonmoving party cannot
establish an essential element of its claim).

       The majority focuses on the third elem ent of Spencer’s section 1983 claim
requiring a showing of retaliatory motive. However, it overlooks that Spencer must
ultimately prove the second elem that “the government official took adverse action
                                  ent,
against him that would chill a person of ordinary firm ness from continuing in the
[protected] activity,” to be successful on his claim. Revels v. Vincenz 382 F.3d 870,
                                                                       ,
876 (8th Cir. 2004). With respect to Carter, Spencer points to his removal from the
IWP as the adverse action. The denial of   privileges may be an adverse action in some
cases, see Madewell v. Roberts, 909 F.2d 1203, 1204-06 (8th Cir. 1990); however, I
disagree that a denial of privileges for which a prisoner is unqualified is a sufficient
adverse action.

                                         -11-
       In Revels, we found that the appellant did not present sufficient evidence of
adverse action, in part because he was not qualified for the privileges denied. 382
F.3d at 876-77. The appellant “adm itted he had not requested [the privileges]. He
also admitted he frequently [engaged in activity,] which would disqualify him for the
privileges he sought. Without evidence he requested or was qualified for such
privileges, his bare allegations do not show he suffered any adverse action.” Id.
(emphasis added).

        In Madewell, on which Lewis v. Jacks , 486 F.3d 1025, 1029 (8th Cir. 2007)
relies, we held the denial of privileges to be an adverse action under the section 1983
analysis. 909 F.2d at 1025, 1027. Unlike thefacts before us, there was no indication
in Madewell that the prisoners were unqualif ied for the privileges. Id. at 1026. In
fact, the opposite is true. There, the official attested that the plaintiffs had “as much
opportunity for [the privilege] as other inm ates.” Id. at 1025. Ultim ately, the
prisoner’s allegations of adverse action, in the form of the denial of privileges for
which they were qualified, was an adverse action to avoid summary judgment. Id. at
1026.

        Viewing the facts in a light most favorableto Spencer, he is unable to establish
an essential element of his claim. As Carter asserts in her affidavit, supported by the
internal policy of the Jackson County Depa   rtment of Corrections, Spencer’s criminal
history disqualified him from the IWP. The policy states that inm ates will be
disqualified if they “have been charged or convicted of . . . violent offenses.” Carter
presented uncontested evidence that Spencer’s criminal history includes both assault
on a police officer and resisting arrest. Thesoffenses are violent. Therefore, Spencer
                                              e
was not qualified to be in the IWP, a conc lusion unaltered by the fact that Spencer was
initially admitted to the program.

      Even if there is a disputed issue of material fact as to whether Car ter was
motivated by a desire to retaliate ag ainst Spencer, Carter’s action in rem oving him

                                          -12-
from the IWP was not sufficiently advers e because he was not qualified for the
privileges he sought. Accordingly, I woul d find that Carter has dem onstrated that
Spencer cannot establish an essential elem ent of his claim , and, therefore, I
respectfully dissent in part.
                        ______________________________




                                       -13-
