OPINION
Demetrius Hill is a federal prisoner who was incarcerated at United States Penitentiary — McCreary (McCreary) in 2009. Hill alleges that the McCreary prison staff placed him in segregated housing and threatened to transfer him to the lock-down unit at United States Penitentiaxy-Lewisburg (Lewisburg) in retaliation for grievances that he had filed against the McCreary staff. He also alleges that his life would be in danger if he were transferred to Lewisburg because the staff there would assault and possibly kill him due to his prior history of incarceration at Lewisburg. To avoid being transferred to the lock-down unit at Lewisburg, Hill sued the Director of the Bureau of Prisons (BOP) and four McCreary staff members, seeking damages, a temporary restraining order, and a preliminary injunction to prevent his transfer.
The district court dismissed Hill’s complaint as frivolous because a prisoner does not have an inherent constitutional right to avoid prison transfers or segregated housing, and because his alleged fear of being harmed by the Lewisburg staff in the future was conjectural and lacking in specificity. Hill appeals the dismissal. For the reasons set forth below, we REVERSE the district court’s decision to dismiss the complaint, VACATE the judgment entered in favor of the defendants, and REMAND the case for further proceedings consistent with this opinion.
I. BACKGROUND
The facts set forth below are based solely on the allegations in Hill’s complaint. As alleged, Hill is a federal prisoner who has filed suit to prevent the prison staff at McCreary from transferring him to the lock-down unit at Lewisburg. Lewisburg housed Hill at various points in 2005 and *470 2006. Hill contends that staff members there viciously assaulted him in 2005. He also claims that Lewisburg staff members told other prisoners in 2006 that he was a rat and should be stabbed. But the plausibility of these claims is undermined by Hill’s own complaint, where he admits that his prior lawsuit against certain members of the Lewisburg prison staff for beating him was dismissed because he “was unable to prove his allegations in court.”
Against this backdrop, Hill complains that the staff at McCreary have threatened to transfer him from McCreary to the lock-down unit at Lewisburg in retaliation for Hill filing grievances against the McCreary staff. Two staff members told him that he was going to be transferred because “they didn’t need the paper-work up here.” After reviewing a report prepared by one of these staff members, a third staff member recommended that Hill be transferred to the lock-down unit at Lewisburg. Hill also alleges that he was placed in segregated housing at McCreary immediately after he filed a grievance against a McCreary staff member.
Relying on the doctrine announced in
Bivens v. Six Unknown Federal Narcotics Agents,
The district court dismissed the complaint after determining that the pleading was frivolous because it lacked an arguable basis in fact or law. Specifically, the court reasoned that Hill’s complaint lacked an arguable basis in law because a prisoner does not have an “inherent constitutional right to avoid a transfer from one prison to another, [or] to remain free of security classifications that would place them in segregation or specialized housing units.” The court also found that Hill’s allegation that the Lewisburg staff will have him assaulted and possibly killed lacked an arguable basis in fact because it was conjectural and lacking in specificity. Hill appeals the dismissal of his complaint.
II. ANALYSIS
A. Standard of review
We review de novo a district court’s decision to dismiss a prisoner’s complaint pursuant to 28 U.S.C. §§ 1915A and 1915(e)(2)(B).
Smith v. Campbell,
The Supreme Court recently clarified the pleading standard for complaints to survive dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure in
Ashcroft v. Iqbal,
-U.S.-,
Whether a complaint is factually frivolous under §§ 1915A(b)(l) and 1915(e)(2)(B)(i) is a separate issue from whether it fails to state a claim for relief. Statutes allowing a complaint to be dismissed as frivolous give “judges not only the authority to dismiss a claim based on an indisputably meritless legal theory, but also the unusual power to pierce the veil of the complaint’s factual allegations and dismiss those claims whose factual contentions are clearly baseless.”
Neitzke,
B. Discussion
The issue in this case is whether Hill’s complaint states a nonffivolous First Amendment retaliation claim upon which relief can be granted. Although inartfully pled, Hill brings this claim through a
Bivens
action, which allows civil rights claims against federal officials that are analogous to those brought against state officials under 42 U.S.C. § 1983.
See Butz v. Economou,
The allegations in Hill’s complaint sufficiently state a First Amendment retaliation claim, especially in light of the “indulgent treatment” that “[cjourts are instructed to give ... to the ‘inartfully pleaded’ allegations of pro se prison litigants.”
Pasley v. Conerly,
These facts contain the essential elements of a First Amendment retaliation claim. To establish such a claim, a prisoner must prove that (1) he engaged in protected conduct, (2) the defendant took an adverse action that is capable of deterring a person of “ordinary firmness from continuing to engage in that conduct,” and (3) “the adverse action was motivated at least in part by the [prisoner’s] protected conduct.”
Thaddeus-X v. Blatter,
1. Protected conduct
The first element that Hill must establish for his retaliation claim is that he was engaged in conduct protected by the First Amendment.
Id.
at 394-95. Such protected conduct includes a prisoner’s “undisputed First Amendment right to file grievances against prison officials on his own behalf.”
Herron v. Harrison,
Hill’s complaint states that he filed grievances against the prison staff at McCreary “for being abusive.” Whether the grievances are frivolous cannot presently be determined because there are no details about those grievances beyond Hill’s allegations. But this court has held that a prisoner’s complaint can survive screening under §§ 1915A and 1915(e)(2)(B) even if the complaint fails to allege that the prisoner’s grievances are not frivolous.
Thomas v. Eby,
Hill’s complaint therefore establishes the protected-conduct element when scrutinized under the failure-to-state-a-claim standard.
See Ashcroft v. Iqbal,
— U.S. -,
2. Adverse action
The second element that Hill must establish for his retaliation claim is that the defendants took an adverse action against him.
Thaddeus-X,
We emphasize that while certain threats or deprivations are so de minimis that *473 they do not rise to the level of being constitutional violations, this threshold is intended to weed out only inconsequential actions....
Thaddeus-X,
Hill alleges two adverse actions by the McCreary staff in his complaint. First, he claims that he was placed in segregated housing just after he filed a grievance against Officer Huff, a staff member. Second, he claims that certain staff members threatened to transfer him to Lewisburg, and that this transfer is harmful for two reasons: (1) the Lewisburg staff will have him assaulted and possibly killed, and (2) he will be sent to the lock-down unit at Lewisburg.
The district court’s analysis of these two allegations was misdirected. It reasoned that because prisoners do not “have an inherent constitutional right to avoid a transfer from one prison to another, [or to] remain free of security classifications that would place them in segregation or specialized housing units,” Hill could not establish a constitutional violation by alleging that he was placed in segregated housing or threatened with a prison transfer in retaliation for filing grievances. The problem with this analysis is that its premise — that a prisoner does not have an inherent constitutional right to avoid segregated housing or prison transfers — is too narrow. Even though a prisoner has no inherent constitutional right to avoid segregated housing or prison transfers, the BOP may not place the prisoner in segregated housing or transfer him to another prison as a means of retaliating against him for exercising his First Amendment rights. This principle is clearly set forth in
Toolasprashad v. Bureau of Prisons,
In a First Amendment retaliation claim, “retaliation for the exercise of constitutional rights is itself a violation of the Constitution.”
Thaddeus-X,
The district court was correct, however, in disregarding as factually frivolous Hill’s allegation that the Lewisburg staff will have him assaulted and possibly killed. That allegation is pure speculation and contains no “specificity or detail as to the threats posed by the [Lewisburg] staff.” The implausible nature of that factual allegation is underscored by the admission in Hill’s complaint that his prior lawsuit against certain members of the Lewisburg prison staff for beating him was dismissed because he “was unable to prove his allegations in court.” Disregarding Hill’s implausible allegation, however, does not affect Hill’s remaining nonfrivolous factual allegations. We must still consider wheth *474 er those remaining allegations can support a First Amendment retaliation claim.
This court has held that restricting a prisoner’s housing by placing him in administrative segregation constitutes an adverse action. In
Dunhamr-Bey v. Holden,
No. 98-1522,
Moreover, administrative segregation is not the only kind of housing restriction that can constitute an adverse action; rather, “an action comparable to transfer to administrative segregation would certainly be adverse.”
Thaddeus-X,
Although the record is unclear as to whether the segregated housing that Hill was placed in at McCreary is comparable to the administrative segregation discussed above, the allegation that placement in segregated housing increased his restrictions and decreased his privileges, or that this placement is comparable to placement in administrative segregation, is at least plausible. Moreover, we must construe Hill’s complaint in the light most favorable to Hill at this stage of the proceedings.
See Thomas v. Eby,
Hill’s second alleged adverse action— that the McCreary staff first threatened and then recommended that Hill be transferred to Lewisburg — is also sufficient to constitute an adverse action, but only because the transfer would send him to the lock-down unit at Lewisburg. As discussed above, threats alone can constitute an adverse action if the threat is capable of deterring a person of ordinary firmness from engaging in protected conduct.
Pasley v. Conerly,
The McCreary staffs threat and recommendation in the present case to transfer Hill to the lock-down unit at Lewisburg constitutes an adverse action because the transfer would foreseeably lead to a living environment with more restrictions and fewer privileges than in the prison’s general population. Although Hill does not explicitly describe the conditions of the lock-down unit, the very name of the unit implies that it is a more restrictive living environment than the general population of a prison. This conclusion is supported by the fact that Hill explicitly contrasts placement in the lock-down unit with placement in the general population, noting in his appellate brief that his “legal activities are severelly [sic] curtailed in a control unit.”
Being threatened with a transfer to a more restrictive living environment with fewer privileges would deter a person of ordinary firmness from exercising the constitutional right to file grievances.
See Thaddeus-X,
3. Motivation for adverse action
The third element that Hill must establish for his retaliation claim to survive summary dismissal is that the adverse action was motivated at least in part by the prisoner’s protected conduct.
Siggers-El,
In the context of trying to defeat the other party’s motion for summary judgment, where a prisoner must satisfy a higher burden to avoid having a First Amendment retaliation claim dismissed than Hill has to satisfy at the present stage of the case at hand, this court noted that some evidence of retaliatory motive is required: “[C]onclusory allegations of retaliatory motive unsupported by material facts will not be sufficient to state a ... claim.”
Harbin-Bey v. Rutter,
Hill alleges that three evidentiary facts support a retaliatory motive in the present ease. The first is evidence of temporal proximity. He contends that he was placed in segregated housing at McCreary “right after [he] filed a complaint against” a McCreary staff member. The second is evidence of disparate treatment of similarly situated individuals. Hill alleges that he and several other prisoners were involved in the same investigation at McCreary. All of the prisoners were sent back to the general population except for Hill, who instead was recommended for a transfer to the lock-down unit at Lewisburg. Hill claims that this disparate treatment evinces a retaliatory motive based on the fact that “[n]o one else has been or is being sent to a control lock down unit because none of them filed complaints against the staff for being abusive.”
The third evidentiary fact in support of a retaliatory motive is Hill’s claim that two McCreary staff members, Officer Huff and Associate Warden McLeod, told him “that he was going to be transfered [sic] because ‘they didn’t need the paper-work up here.’ ” He further alleges that Huff “stated that [Huff] would do the investigative report ‘personally’ to ensure that [Hill] would be shipped.” Lieutenant Burchette received this report and then recommended that Hill be transferred to the lock-down unit at Lewisburg. Although Burchette did not make the “paper-work” statement that Hill contends is direct evidence that he would be transferred in retaliation for filing grievances, this fact is not determinative because Burchette relied on the report by Huff, who allegedly did make the statement.
Cf Siggers-El,
These three evidentiary facts are sufficient at this stage of the proceedings to satisfy the retaliatory-motive element of Hill’s First Amendment retaliation claim. The first two evidentiary facts that Hill offers (temporal proximity and disparate treatment) have been explicitly recognized by this court as being capable of proving a retaliatory motive.
See Thaddeus-X,
III. CONCLUSION
For all of the reasons set forth above, we REVERSE the district court’s decision to dismiss the complaint, VACATE the judgment entered in favor of the defendants, and REMAND the case for further proceedings consistent with this opinion.
