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Fifth Circuit Misstates Retaliation Standard

Prisoners claiming retaliation must allege "(1) a specific constitutional right, (2) the defendant's intent to retaliate against the prisoner for his or her exercise of that right, (3) a retaliatory adverse act, and (4) causation." The plaintiff alleged retaliation for his filing of grievances that limited him to five hours of law library time a week. However, such a limit does not deny court access, and the plaintiff therefore has no retaliation claim. (Wrong. Retaliation for the exercise of a constitutional right need not itself be unconstitutional, as the court itself suggests in the phrase "a retaliatory adverse act.")

The district court properly dismissed the plaintiff's claim for failure to protect by refusing to transfer him. In the absence of any allegation of physical injury, his claim is barred by the PLRA mental/emotional injury provision.

The district court properly dismissed with prejudice. At 326: "Generally a district court errs in dismissing a pro se complaint for failure to state a claim under Rule 12(b)(6) without giving the plaintiff an opportunity to amend" But:

if the protections afforded public officials are not to ring hollow, plaintiffs cannot be allowed to continue to amend or supplement their pleading until they stumble upon a formula that carries them over the threshold. Such a protracted process is likely to disrupt public officials from their duties At some point a court must decide that a plaintiff has had a fair opportunity to make his case; if, after that time, a cause has not been established, the court should finally dismiss the suit. Id. (citation omitted). See: Jones v. Greninger, 188 F.3d 322 (5th Cir. 1999).

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Related legal case

Jones v. Greninger