Summary
In Strope, the court denied Defendants' request for summary judgment on the retaliation claim where the plaintiff showed he was disciplined repeatedly closely following grievances that he filed against prison officials.
Summary of this case from Castleberry v. ShanksOpinion
Civil Action No. 01-3358-KHV
April 17, 2003
MEMORANDUM AND ORDER
Michael Lee Strope, an inmate at the Lansing Correctional Facility ("LCF") brings suit against James Barkley, Lee Gibbens, James Kelly Jones, Rod Karlin, David McKune, Rhonda Phelps, Kim Pritchett, Charles Simmons and Terry Steen Woods. Invoking 42 U.S.C. § 1983, plaintiff claims that defendants violated his rights under the First, Eighth and Fourteenth Amendments. This matter comes before the Court on Defendants' Motion For Summary Judgment (Doc. #76) filed November 18, 2002. For reasons set forth below, the Court finds that defendants' motion should be sustained in part.
Summary Judgment Standards
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Smith v. Midland Brake, Inc., 138 F.3d 1304, 1307 (10th Cir. 1998). The moving party bears the initial burden of showing that there is an absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party meets its burden, the burden shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 256. A "genuine" factual dispute requires more than a mere scintilla of evidence. Id. at 252.
In considering a summary judgment motion the Court must view the evidence in the light most favorable to the nonmoving party. See Tom v. First Am. Credit Union, 151 F.3d 1289, 1291 (10th Cir. 1998). Summary judgment may be granted, however, if the nonmoving party's evidence is merely colorable or is not significantly probative. See Anderson, 477 U.S. at 250-1. Thus, "`[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party,' summary judgment in favor of the moving party is proper." Thomas v. IBM, 48 F.3d 478, 484 (10th Cir. 1995) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). In pro se prisoner litigation, the Tenth Circuit endorses the completion and filing of a "Martinez report" where the prison constructs an administrative record detailing the factual investigation of the events at issue. See Martinez v. Aaron, 570 F.2d 317, 319 (10th Cir. 1978). The Martinez report "is treated like an affidavit, and the court is not authorized to accept the factual findings of the prison investigation when the plaintiff has presented conflicting evidence." Green v. Branson, 108 F.3d 1296, 1302 (10th Cir. 1997) (citing Hall v. Bellmon, 935 F.2d 1106, 1111 (10th Cir. 1991)). The pro se prisoner's complaint, when sworn and made under a penalty of perjury, is also treated as an affidavit and, like the Martinez report, serves as evidence for a summary judgment determination. See id.
Background
The local rules provide that:
The memorandum or brief in support of a motion for summary judgment shall begin with a section that contains a concise statement of material facts as to which the movant contends no genuine issue exists. The facts shall be numbered and shall refer with particularity to those portions of the record upon which movant relies.
D. Kan. Rule 56.1. Defendants' motion for summary judgment includes a statement of ten numbered facts which are allegedly "uncontroverted," but no citations to the record.
Local rules also require that an opposing memorandum begin with a section that contains a "concise statement of material facts as to which the party contends a genuine issue exists." Id. Each fact must be numbered and refer with particularity to those portions of the record upon which the party relies. In responding, the non-moving party shall state the "number" of each of fact that is disputed. Plaintiff has not stated which of defendants' facts he disputes. Rather, he has set forth his own statement of facts. Although plaintiff's statement of facts does not cite the record, he has provided a sworn affidavit that the facts contained in his summary judgment response are true. Defendants did not file a reply and the Court therefore takes plaintiff's statement of facts as true, to the extent that they are based on his personal knowledge.
Plaintiff's Amended Complaint (Doc. #27) filed May 22, 2002 is also verified and the Court therefore has incorporated it into the statement of facts.
In their motion for summary judgment, defendants challenge both the sufficiency of the allegations in plaintiff's complaint and the supporting evidence. See, e.g., Memorandum In Support Of Defendants' Motion For Summary Judgment (Doc. #77) filed November 18, 2002 at 7. To the extent that defendants attack the sufficiency of plaintiff's complaint, the Court construes their motion as one for judgment on the pleadings.
Facts
The following facts are based on plaintiff's complaint and memorandum in response to defendants' motion for summary judgment.
On December 18, 1997, plaintiff legally changed his name from Gordon Eugene Strope to Michael Lee Strope. Kansas administrative regulations provide that:
Plaintiff alleges that Gordon Eugene Strope is equivalent to 666, "the mark of the beast." Complaint (Doc. #1) at 9.
In all matters an inmate shall respond to officials when addressed by the name under which he was committed to the custody of the secretary of corrections until discharged from sentence. An inmate shall be referred to in all official transactions, and all correspondence to and from the inmate, under the name used in the journal entry of convictions and commitment throughout his or her period of incarceration. In the event of a legal name change, the records may reflect the new name as an alias and the inmate may use the alias name in parentheses after the conviction name.
K. A. R. 44-12-506. Despite his name change, pursuant to this regulation, defendants James K. Jones (the mailroom supervisor), David McKune (the LCF Warden) and Charles Simmons (the Kansas Secretary of Corrections) refuse to recognize his legal name and deliver mail addressed to him in his new name.
On January 11, 2001, plaintiff filed a grievance against McKune, alleging that he had falsified documents in response to a grievance that plaintiff had filed on December 20, 2000. Over the next 33 days, prison officials searched plaintiff's cell ten times. Plaintiff was not present for seven of the searches, but on January 25, 2001 at 1:00 a.m., defendants Rod Karlin and Kim Pritchett, together with another correctional officer, entered plaintiff's cell. Plaintiff was present and saw the three correctional officers read his legal documents and grievances, dump his property on the floor and take personal letters and pictures. Plaintiff submitted two grievances about the search to Lee Gibbens, a unit team leader, but Gibbens never answered them.
The next day, at 11:15 a.m., Karlin and two unidentified "black suits" ordered plaintiff into a supply room and strip-searched him. When plaintiff returned to his cell he found that it again had been "trashed." Plaintiff sent a notice to McKune, stating that he wanted his property and that he wanted the "harassing searches" to stop. On February 3, 2001, three "black suits" awakened plaintiff, strip-searched him, searched his cell and emptied his legal files onto the floor.
On February 5, 2001, Gibbens called plaintiff to his office and told him that he was "sick of all the fuckin' complaints and tired of receiving phone calls on [plaintiff]." Complaint (Doc. #1) at 3. Plaintiff complained of the injuries he had suffered and asked to be moved to A-1 cell house. Gibbens agreed to transfer plaintiff on the condition that plaintiff keep him out of any legal actions stemming from the incidents. Plaintiff replied,"no problem, just process my complaints and forward them on to me so I can exhaust my administrative remedies." Id. at 4. Despite plaintiff's request, Gibbens never processed plaintiff's complaints but on February 6, 2001, he moved plaintiff to A-1 cell house.
In March or early April of 2001, Rhonda Phelps began work as a corrections officer in the A-1 cell house. In early May, Phelps began to harass plaintiff and treat him differently from other inmates. Specifically, on three occasions she limited the length of plaintiff's visits to the law library but not those of other inmates. Plaintiff complained to Phelps' superior. Shortly thereafter, on June 3, 2001, Phelps refused to let plaintiff out of his cell to get ice or water, even though she knew that he had no water because his sink was broken. Phelps let three other inmates out of their cells to get ice.
On June 6, 2001, plaintiff spoke to Phelps about his treatment and she told him to "deal with it." That night and the following night Phelps refused to let plaintiff out of his cell to eat his evening meal. On June 7, 2001, plaintiff asked Phelps why he could not go eat and she told him "you shouldn't complain so much, maybe these things wouldn't happen."
On June 26, 2001, plaintiff served Simmons a complaint in another case (No. 01-3009-GTV). That complaint alleged that Simmons and others had retaliated against him and violated his civil rights. At 3:30 a.m. the next morning, unidentified prison workers woke plaintiff to demand a urine sample for analysis. Simmons had requested the urinalysis. Prison officials had not required plaintiff to provide a urine sample since right after an evidentiary hearing in one of plaintiff's other federal lawsuits. Plaintiff filed a grievance about the urinalysis, but he received no response.
On July 6, 2001, plaintiff handed Phelps a two-page informal grievance. She refused to sign, date or answer it. Phelps told him that "it's a lot more unpleasant in B-1 and A-2." On July 11, 2001, plaintiff filed a grievance against Phelps — which prison officials did not answer.
On July 20, 2001, Phelps ordered plaintiff to end a 15-minute phone call five minutes early. Plaintiff complained to the cell house sergeant, who ordered Phelps to give plaintiff a make-up call — which Phelps refused to do.
On August 2, 3 and 4, 2001, Phelps refused to let plaintiff leave his cell to eat supper. On August 5 and 12, 2001, Phelps denied plaintiff his scheduled recreation and shower time. When plaintiff told Phelps that he would file a lawsuit, she told plaintiff that she was "having [his] ass moved out of here" and threatened to lock him down if he filed a lawsuit. The next day plaintiff handed Gibbens a three-page sworn complaint against Phelps. After Gibbens read the complaint, he told plaintiff that he and Phelps had agreed to move plaintiff to the restricted unit in D cell house if he filed more complaints. Plaintiff stated that moving him due to complaints was not right. Gibbens responded, "I am sick of this shit, you complained all the time you were in B-1 and now your [sic] complaining over here — go pack your shit because your [sic] out of here." Id. at 5. Plaintiff protested that he had previously filed suit against Officer Roper, who was in charge of D cell house. Plaintiff assured Gibbens that he would not file any more complaints if they let him stay in A-1 cell house. Gibbens and Phelps nonetheless moved plaintiff to D cell house.
On August 16, 2001, plaintiff filed a detailed complaint with the LCF grievance officer. The Kansas Department of Corrections refused to correct any of the issues which plaintiff raised and completely denied him access to grievance procedures from January to August of 2001.
At the end of October 2001, Terry Steen Woods took over the 6 a.m. to 2 p.m. shift in D cell house. She engaged in a pattern of abusive treatment, including turning up the public address system so loud that it made plaintiff's ears ring. Plaintiff complained about this treatment to Woods and to corrections counselor Jim Barkley. On December 11, 2001 Woods ordered plaintiff to stand against the wall for 75 minutes while Woods, Barkley and another officer completely "trashed" plaintiff's cell. On December 27, plaintiff filed a complaint about this incident and sent Barkley and Woods a notice that their conduct was unconstitutional. On January 3, 2002, Barkley moved plaintiff to B cell house.
Analysis
In his amended complaint, plaintiff claims that (1) Gibbens violated his First Amendment right to free speech and his Fourteenth Amendment rights to equal protection and due process by not processing his grievances and conspiring with Phelps to retaliate against him for filing grievances; (2) Phelps violated plaintiff's First Amendment right to free speech and Fourteenth Amendment right to equal protection by conspiring with Gibbens to retaliate against him for filing grievances; (3) Jones, who supervised the mailroom, violated plaintiff's First Amendment rights by returning mail sent to plaintiff in his new legal name and forcing him to use his prior legal name, breaking the law and violating his religious beliefs; (4) Karlin and Pritchett violated plaintiff's constitutional rights by ransacking his cell, strip-searching him and requiring him to submit to urinalysis in retaliation for plaintiff's filing of grievances; (5) Simmons, Secretary of the Department of Corrections, violated his First Amendment and Fourteenth Amendment rights by preventing him from receiving mail in his legal name and conspiring with other correctional officers to retaliate against him for filing grievances and lawsuits; (6) McKune, LCF warden, subjected plaintiff to cruel and unusual punishment, denied him equal protection and due process by preventing him from receiving mail in his new legal name and conspired staff members to harass plaintiff in retaliation for his filing of grievances; (7) Phelps, Gibbens, Karlin and Pritchett subjected him to cruel and unusual punishment by harassing him; and (8) Woods and Barkley violated his right to be free from cruel and unusual punishment and his rights to equal protection and free speech.
Defendants contend that they are entitled to summary judgment for the following reasons: (1) plaintiff cannot show that refusing to let him to use his legal name on mail (or otherwise) violates a liberty interest; (2) absent physical injury, plaintiff's claims of harassment, cell searches, seizures, strip-searches and urine drug testing do not support a claim under 42 U.S.C. § 1983; (3) because plaintiff does not allege a constitutional violation, plaintiff cannot claim that defendants conspired to deprive him of constitutional rights; (4) plaintiff has not stated a claim of cruel and unusual punishment; (5) in their official capacities, defendants are entitled to Eleventh Amendment immunity; (6) defendants are entitled to qualified immunity for actions taken in their personal capacities; and (7) plaintiff has not shown that defendants in their individual capacities personally participated in the alleged violations. The Court will address each argument in turn.
I. Use Of Legal Name
Plaintiff alleges that when they prevented him from using his new legal name on his mail and in grievances, Jones, Simmons and McKune violated his First Amendment right to free exercise of religion and his right to due process and equal protection under the Fourteenth Amendment. Defendants assert that K.A.R. 44-12-506 requires prisoners to use the names under which they were incarcerated, and that that regulation furthers a legitimate state interest in ensuring that inmates receive mail. As the Court noted in overruling plaintiff's motion for a mandatory injunction, case law supports the practice which the Department of Corrections has adopted. See Matthews v. Morales, 23 F.3d 118 (5th Cir. 1994) (statute prohibiting prisoner from changing name upheld against challenges based on religion, equal protection and due process); Fawaad v. Herring, 874 F. Supp. 350 (N.D.Ala. 1995) (inmate's right to free speech and religion not violated by requirement that on incoming and outgoing mail, inmate use both name under which convicted and chosen religious name); Kirwan v. Larned Mental Health, 816 F. Supp. 672 (D.Kan. 1993) (no claim stated where prison officials used legal name under which inmate convicted). Defendants are entitled to summary judgment on this claim.
II. Retaliatory Harassment, Searches, Seizures And Urine Drug Tests
Plaintiff asserts that in retaliation for his filing of grievances, defendants harassed him, repeatedly searched his cell, strip-searched him and conducted a middle-of-the-night urine test. Defendants seek summary judgment, specifically arguing as follows:
Strope claims that he was subjected to searches and seizures, cell searches as well as being moved within the cell house. Strope specifically claims that he has been harassed by C. O. Rhonda Phelps, in particular. Strope makes "general allegations" and has not provided any evidence that he was physically harmed, in any way. Even if one were to believe that Strope was indeed threatened with bodily injury or deprivation of other privileges, it is settled that threatening or abusive language or other verbal harassment by prison officials does not support a claim under Section 1983. Oltarzewski v. Ruggiero, 830 F.2d 136, 137 (9th Cir. 1987); Parrish v. Johnson, 800 F.2d 600, 604-05 (6th Cir. 1986); Martin v. Sargent, 780 F.2d 1334 (8th Cir. 1985); Collins v. Cundy, 603 F.2d 825, 827 (10th Cir. 1979). Therefore, as he has not shown any physical injuries, this portion of their [sic] argument is merit less, [sic] also.
Memorandum In Support (Doc. #77) at 7-8. Although defendants characterize plaintiff's facts as "general allegations," plaintiff cites specific evidence that on many occasions after he filed a grievance, specific defendants harassed him, denied him privileges, withheld food, trashed his cell and/or moved him to a more restrictive cell block. Defendants argue that plaintiff cannot set out a Section 1983 claim because he does not allege physical harm. Indeed, this Court has noted that a de minimus use of force in retaliation for filing grievances does not rise to constitutional proportions. See Strope v. Thomas, 2000 WL 210399 (D.Kan. Feb. 16, 2000) (citing Hudson v. McMillian, 503 U.S. 1, 9-10 (1992); Conn v. Gabbert, 119 S.Ct. 1292, 1296 (1999); Fuentes v. Shevin, 407 U.S. 67, 86 (1972); Doe v. Bagan, 41 F.3d 571, 575 (10th Cir. 1994)). Even so, the Tenth Circuit has held that prison officials may not retaliate against or harass an inmate because of the inmate's exercise of his constitutional rights. Peterson v. Shanks, 149 F.3d 1140, 1144 (10th Cir. 1998). In so holding it noted as follows:
This principle applies even where the action taken in retaliation would be otherwise permissible. As the Supreme Court made clear . . . however, it is not the role of the federal judiciary to scrutinize and interfere with the daily operations of a state prison, and our retaliation jurisprudence does not change this role. Obviously, an inmate is not inoculated from the normal conditions of confinement experienced by convicted felons serving time in prison merely because he has engaged in protected activity. Accordingly, a plaintiff must prove that but for the retaliatory motive, the incidents to which he refers, including the disciplinary action, would not have taken place. An inmate claiming retaliation must allege specific facts showing retaliation because of the exercise of the prisoner's constitutional rights.
Id. (citations and quotations omitted). Accordingly, this Court has found a genuine issue of material fact where an inmate files a grievance or engages in legal proceedings against prison officials, and soon thereafter faces potentially punitive actions such as a middle-of-the-night urinalysis or placement in segregation. See Strope, 2000 WL 210399 at *6. In this case, plaintiff has alleged close temporal proximity between his initiation of grievances and legal proceedings, and allegedly punitive actions which include, for example, an early morning urinalysis shortly after he served a complaint on one defendant, a denial of food, water and/or exercise shortly after he filed grievances, and repeated cell searches after he filed grievances. Defendants' entire argument on the retaliation claims is quoted above. That argument does not entitle defendants to summary judgment on plaintiff's claim of retaliation.
III. Conspiracy To Deprive Plaintiff Of A Constitutionally Protected Interest
Plaintiff alleges that McKune and Simmons conspired with Jones to deny him the right to use his legal name and conspired with Phelps to harass him for filing grievances. To the extent that the conspiracy is based on plaintiff's alleged right to use his legal name while in prison, the Court has noted that plaintiff has no right to use his new legal name while in prison, and it therefore sustains defendants' motion for summary judgment on this claim.
As for the alleged conspiracy to harass plaintiff for filing grievances, defendants assert that LCF has a legitimate penological interest in requiring prisoners to take drug tests, search cells for contraband and move prisoners as officials see fit. See Sandin v. Connor, 515 U.S. 472, 484 (1995) (due process protects state-created liberty interest only if deprivation would impose "atypical and significant hardship" on inmate in relation to ordinary incidents of prison life). Defendants then state that "[d]ue to the fact that no constitutional right of the Plaintiff has been violated when they [sic] were required to work and not paid minimum wage, then, it follows that there can be no conspiracy to deny them of rights that do not exist." Nothing in the record suggests that plaintiff asserts any claim which is even remotely related to a work requirement or wage claim. Except as to the use of plaintiff's legal name, the Court therefore overrules defendants' motion for summary judgment on the conspiracy claims.
IV. Eighth Amendment
Defendants argue that they are entitled to summary judgment on plaintiff's Eighth Amendment claims. To establish an Eighth Amendment violation in this Circuit, plaintiff must show that the "alleged deprivation is objectively, sufficiently serious, and the prison official acts with deliberate indifference to inmate health or safety." See Penrod v. Zararas, 94 F.3d 1399, 1406 (10th Cir. 1996) (possible Eighth Amendment violation when denial of dental supplies might have led to inmate dental problems). Plaintiff's claims of short periods of deprivation of food, ice and access to the exercise yard, as well as movement from cell block to cell block, a middle-of-the-night uranalysis, verbal harassment, cell searches and refusing to respond to grievances do not rise to the level of an Eighth Amendment claim. The record contains no suggestion that these deprivations implicate plaintiff's health or safety. Plaintiff does not state a claim of cruel or unusual punishment. The Court therefore finds that defendants are entitled to summary judgment on plaintiff's Eighth Amendment claims.
V. Eleventh Amendment Immunity
Defendants assert that to the extent plaintiff brings suit in their official capacities, they are entitled to Eleventh Amendment immunity. Plaintiff's amended complaint specifically states that he sues each defendant in his or her individual capacity. See Amended Complaint (Doc. #27) filed May 22, 2002 at 4. The caption, however, sets forth the official title of each defendant. The Court thus construes plaintiff's suit as an action against defendants in both their official and individual capacities. Cf. Ky. v. Graham, 473 U.S. 159, 167 n. 14 (1985); Houston v. Reich, 932 F.2d 883, 885 (10th Cir. 1991) (where complaint does not clearly specify whether officials are sued personally or in official capacities, or both, court must look to course of proceeding to determine nature of suit).
In his response to defendants' motion, plaintiff again states that he sues the individual defendants in their individual capacities.
The Eleventh Amendment doctrine of sovereign immunity bars actions for damages against a state, its agencies and its officials acting in their official capacities. See Graham, 473 U.S. at 165-167; Ambus v. Granite Bd. of Educ., 995 F.2d 992, 994 (10th Cir. 1993) (Eleventh Amendment immunity extends to agencies that act as arms of state). When it enacted 42 U.S.C. § 1983, Congress did not intend to abrogate the immunity of states under the Eleventh Amendment. See Will v. Mich. Dep't of State Police, 491 U.S. 58, 66-71 (1989) (state officials acting in official capacity not persons within meaning of 42 U.S.C. § 1983). Accordingly, the Court sustains defendants' motion to dismiss plaintiff's damages claims against defendants in their official capacities.
VI. Qualified Immunity
To the extent that plaintiff brings suit in defendants' individual capacities, defendants argue that they are entitled to qualified immunity. "Government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The only remaining claims in this case are plaintiff's claims that defendants (except Jones) conspired to and/or retaliated against him for his filing of grievances. Here, however, the law has long been clearly established that prison officials cannot retaliate against inmates for pursuing grievances and lawsuits. See Smith v. Maschner, 899 F.2d 940, 947 (10th Cir. 1990). As discussed above, the record supports an inference that defendants Barkley, Gibbens, Karlin, McKune, Phelps, Pritchett, Simmons and Woods did exactly that. These defendants are not entitled to qualified immunity on plaintiff's claim that they retaliated against him for filing grievances.
The issue of qualified immunity is moot as to Jones because the Court has already determined that he is entitled to summary judgment on plaintiff's only claims against him — the substantive and conspiracy claims that he denied plaintiff the right to use his legal name.
VII. Lack Of Personal Participation
Defendants assert that plaintiff has not shown the required personal participation by each defendant. See Snell v. Tunnell, 920 F.2d 673, 700 (10th Cir. 1990). Defendants note that prison officials are only responsible for their own constitutional violations, and assert that plaintiff has not alleged that defendants (1) actually participated in the deprivation of plaintiff's constitutional rights, (2) acquiesced in a subordinate's deprivation of plaintiff's constitutional rights or (3) established or utilized a policy or custom which authorized or permitted a subordinate to deprive plaintiff of his constitutional rights. See Memorandum In Support at 12-13 (citing Mitchell v. Maynard, 80 F.3d 1433, 1441 (10th Cir. 1996)). Defendants assert that plaintiff has not identified or offered proof that specific correctional officials engaged in conduct which violated his constitutional rights. As set forth in the fact section above, plaintiff cited evidence of specific retaliatory conduct by each defendant (except Jones), including supervisory officials. Further, although defendants' conclusion argues that plaintiff's claims are "seriously tainted by undisputable evidence," the only evidence properly before the Court on this motion is the evidence cited by plaintiff — which supports his retaliation claims. Defendants' motion for summary judgment based on lack of personal participation is not well taken.
IT IS THEREFORE ORDERED that Defendants' Motion For Summary Judgment (Doc. #76) filed November 18, 2002 be and hereby is SUSTAINED IN PART, in that (1) plaintiff's damage claims against each defendant in his or her official capacity are dismissed; (2) plaintiff's claims that defendants violated his constitutional rights by refusing or conspiring to refuse to let him use his legal name are dismissed; and (3) plaintiff's claims that defendants subjected him to cruel and unusual punishment in violation of the Eighth Amendment are dismissed.
IT IS FURTHER ORDERED that Defendants' Motion For Summary Judgment (Doc. #76) filed November 18, 2002 be and hereby is otherwise OVERRULED.
Plaintiff's claims that defendants Barkley, Gibbens, Karlin, McKune, Phelps, Pritchett, Simmons and Woods violated his First and Fourteenth Amendment rights by retaliating and/or conspiring to retaliate against him for filing grievances remain in the case.