Prisoner action alleging First & Eighth Amendment violation claims; First Amendment retaliation; Thomas v Eby; Protected conduct; Adverse action; Bell v Johnson; Causation; Qualified immunity; Clearly established law; Thaddeus-X v Blatter; COVID-19 exposure Eighth Amendment claims; Standing; Injury in fact; Waiver (timeliness of defendants’ motion to dismiss); FedRCivP 12(a)(1); The Prison Litigation Reform Act (PLRA); 42 USC § 1997e(g); Order of defendants’ filings; Dismissal “at any time” for failure to state a claim; § 1997e(c)(1)

[This appeal was from the WD-MI.] After rejecting plaintiff-prisoner’s (Hardrick) argument that defendants waived the right to dismissal because their motion to dismiss was untimely, the court held that “the district court erred in dismissing Hardrick’s First Amendment retaliation claim and granting” defendant-warden (Huss) qualified immunity. But his Eighth Amendment claims as to COVID-19 exposure could not proceed due to lack of standing. Hardrick asserted “an industrial-sized fan blew dangerously cold air and dust into his cell, causing him to cough up blood.” He alleged that Huss “refused to avert the fan because [he] had filed grievances against her[.]” He also alleged that “Huss and members of the prison’s medical staff endangered his health by erroneously designating him as having COVID-19 and placing him in housing with prisoners who had tested positive for” it. The district court dismissed the case. He first argued on appeal that defendants’ motion to dismiss was untimely, resulting in waiver of the right to dismissal. While he relied on Rule 12(a)(1), the PLRA altered the timeline so that 21-day clock did not apply here. As to his reliance on § 1997e(g), it “does not address the order of defendants’ filings. Hardrick’s argument also ignores a different provision of the PLRA” requiring dismissal of “a case ‘at any time’ if the complaint ‘fails to state a claim upon which relief may be granted.’” Turning to the First Amendment retaliation claim, the court disagreed with the district court’s conclusion that Hardrick’s three grievances over his living conditions did not constitute protected conduct. The prison’s rejection of his grievance about the fan did not deny “it First Amendment protection. The district court never found the grievance ‘frivolous,’ nor Hardrick’s use of the grievance process ‘abusive.’” In addition, the “protected activity did not need to be directed at Warden Huss; if a defendant retaliates based on protected activity aimed at other officials, it’s still retaliation based on conduct protected by the First Amendment.” Next, the court concluded that he “plausibly pled that Warden Huss took an adverse action against him by refusing to address the harm from the industrial-sized fan” and that he “sufficiently alleged causation.” It also found that the warden “violated clearly established law when she refused to resolve the harms caused by the industrial-sized fan.” The question was “whether a reasonable officer at the time would have known that they cannot refuse to help an inmate who is coughing up blood because he filed grievances against her. The answer is yes.” Reversed and remanded as to the First Amendment retaliation claim against the warden, affirmed as to all other claims.