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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

TERRENCE PAUL ROBINSON,

 Plaintiff,

vs. 5:03cv25/MMP/MD

ROBERT G. BOYD,

 Defendant.

SECOND REPORT AND RECOMMENDATION

This case is before this court after referral by the presiding district judge for

additional consideration of the defendant’s objections to the court’s report and

recommendation. (Doc. 78). This recommendation supersedes the previous report

and recommendation entered on May 26, 2005. (Doc. 71).

Procedural Background

Plaintiff, an inmate proceeding pro se, filed a third amended complaint

pursuant to title 28 U.S.C. §1331 and Bivens v. Six Unknown Named Agents of

Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).

(Doc. 18). This court issued a Report and Recommendation (doc. 24) recommending

that plaintiff’s complaint be dismissed for failure to state a claim pursuant to 28

U.S.C. § 1915(e)(2)(B)(ii). By Order dated June 8, 2004, Senior District Judge Paul

adopted the Recommendation except as to plaintiff’s retaliation claim against

Captain Robert Boyd, which is currently pending. (Doc. 31 at 5). The district court

concurred that plaintiff would be entitled, at most, to nominal damages and

declaratory and injunctive relief. (Id. at 2). 

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Case No: 5:03cv25/MMP/MD

The third amended complaint was served upon defendant Captain Robert G.

Boyd, who filed a special report on October 25, 2004. (Doc. 48). Plaintiff filed a

response to the special report (doc. 52), and on December 14, 2004, this court

entered an order advising the parties that the special report would be construed as

a motion for summary judgment as of January 14, 2005. (Doc. 53). When plaintiff

moved for leave to conduct discovery, the court changed the submission date on the

motion for summary judgment to February 20, 2005. (Doc. 56). Neither party filed

any additional evidence, although plaintiff belatedly filed motions relating to

defendant’s alleged failure to respond to his discovery requests, which were

addressed by separate order. (Doc. 64, 65, 66 & 67). On May 26, 2005, this court

entered a recommendation that the defendant’s motion for summary judgment be

denied, finding that there were genuine issues of material fact precluding summary

judgment. On January 4, 2006, the district court rejected the recommendation and

remanded to the undersigned for consideration of the issues raised in the

defendant’s objections to the recommendation.

Factual Background

Plaintiff was incarcerated at the Federal Correctional Institution in Marianna

at the time of the events giving rise to this complaint. On April 3, 2002, Warden Mark

Henry implemented a policy prohibiting inmates from wearing knit caps and jackets

until winter time. (Doc. 48, exh. 2). Plaintiff maintains that he caught a cold on April

4, 2002 when he was outdoors without a cap or jacket in temperatures below 50

degrees. Therefore, when temperatures were in the low 40's the following day,

plaintiff went to Captain Boyd to discuss his concerns. According to plaintiff, he

“politely asked the captain if [he] may wear warm gears because the time was cold

and [he] had, in fact, caught a cold.” (Doc. 18, exh. A). Specifically, plaintiff asked

to wear the knit cap he had purchased at the commissary. The captain responded

“It’s summer . . . you don’t need winter gears . . . you don’t see me wearing any. . .”

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Case No: 5:03cv25/MMP/MD

and told plaintiff to return to the unit. As plaintiff turned to leave, he saw a

corrections officer with both his knit cap and jacket on. He states that he pointed

this out to the captain who then told the officers nearby to “cuff him.” (Id.)

Elsewhere in the complaint plaintiff describes his contact with Boyd as “respectful

initiation of informal resolution with a senior staff member.” (Doc. 18, exh. C-2).

Plaintiff also submitted the affidavit of fellow inmate Wilton Daley, a witness

to the event in question. (Doc. 69). Mr. Daley states that on April 5, 2002, while he

and plaintiff were walking to the housing unit in 41 degree weather, plaintiff

complained he had caught a cold and they discussed the recent memorandum

prohibiting the inmates from wearing caps and jackets. The men noticed three

corrections officers (CO’s) wearing jackets, one of whom also wore a cap. Captain

Boyd stood nearby. Plaintiff indicated his intent to talk to Captain Boyd about

getting special permission to wear caps and jackets in light of the cold spell. Daley

tried to dissuade plaintiff from doing so in light of Boyd’s “reputation of putting

inmates in the special housing unit (SHU) without cause.” (Doc. 69 at 3). Daley

continued walking, although he looked back to see what was happening. He states

that he could not hear what was being said because the conversation was

conducted in low tones, but he saw that less than one minute after plaintiff went to

talk to the defendant, plaintiff pointed to the nearby CO’s. Defendant simultaneously

pointed to the plaintiff, and two CO’s advanced toward plaintiff, searched him,

handcuffed him and escorted him to the SHU. By Daley’s account then, the entire

interaction took place in approximately one minute. 

Captain Boyd’s description of the exchange was significantly different. He

states in his affidavit that:

When I attempted to answer inmate Robinson’s question [about the

policy], he continuously interrupted me and became increasingly

argumentative and agitated. Inmate Robinson’s conduct escalated to

the point that other inmates in the area began taking notice of his

behavior and began stopping to observe inmate Robinson’s conduct as

well as his conversation with me. Although I ordered inmate Robinson

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Case No: 5:03cv25/MMP/MD

to calm down several times, he did not do so. Consequently, I ordered

inmate Robinson to address his concerns in writing through the

administrative remedy process. Inmate Robinson continued to ignore

my orders and I determined his conduct posed an immediate threat to

the prison’s safe, secure and orderly operation since inmate

Robinson’s conduct could incite more widespread disruption of the

morning’s work call. At the time I made this determination there were

several hundred inmates free on the compound. Accordingly, I

instructed the Compound Officers to escort inmate Robinson to

administrative detention.

(Doc. 48, exh. 3 at p. 2).

Despite the differing version of events beforehand, the parties do not disagree

that after the conversation between Boyd and the plaintiff, plaintiff was placed in the

Special Housing Unit (“SHU”). Plaintiff alleges that Captain Boyd put him in the SHU

in retaliation for his inquiry about the policy prohibiting the wearing of knit caps, in

violation of his first amendment rights to address “matters of concern to the

inmate,” while Boyd maintains that the SHU placement was made only for concern

about institutional safety and security. Plaintiff alleges that he was not released

from SHU until 12 days later when he submitted an “Attempt at Informal Resolution

to Staff” claiming that his SHU placement violated his rights.

The responses to the grievances are not consistent in their description of

what happened. They variously indicate that plaintiff made an “unwarrantedinquiry”

(doc. 18, exh. B), exhibited deliberate repeated refusals to obey the captain’s orders

(doc. 18, exh. C), or that plaintiff became “agitated and argumentative” when the

captain approached him about wearing “unauthorized head gear,” and there was the

possibility that he was “inciting other inmates.” (Doc. 18, exh. D). The grievances

also confirm plaintiff’s contention that after an investigation into the incident was

conducted, plaintiff was returned to the general population approximately 12 days

later. (Doc. 18, exh. D-4). 

Plaintiff initially sought declaratory and injunctive relief, $1,500 in “actual

damages,” nominal damages, and $7,000 in “punitive damages.” In this court’s

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initial recommendation, it noted that the plaintiff is not entitled to actual or punitive

damages, a conclusion with which the district court concurred. (See doc. 31 at 2

“plaintiff failed to allege more than de minimis physical injury and therefore . . . is

entitled, at most, to nominal damages and declaratory and injunctive relief.”)

Legal Analysis

Summary Judgment Standard

On a motion for summary judgment, this court must evaluate the record in the

light most favorable to plaintiff as the nonmovant and grant defendant’s motion only

if the record demonstrates that there is no genuine issue of material fact and that

defendant is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477

U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265, 273 (1986); Harris v. Coweta

County Georgia, 433 F.3d 807, 811 (11th Cir. 2005); Lee v. Ferraro, 284 F.3d 1188,

1190 (11th Cir. 2002); F.R.C.P. 56. Summary judgment is improper “[i]f a reasonable

fact finder could draw more than one inference from the facts, and that inference

creates a genuine issue of material fact.” Cornelius v. Highland Lake, 880 F.2d 348,

351 (11th Cir. 1989), cert. denied, 494 U.S. 1066, 110 S.Ct. 1784, 108 L.Ed.2d 785

(1990). An issue of fact is “material” if it might affect the outcome of the case under

the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct.

2505, 2510, 91 L.Ed.2d 202, 211 (1986). It is “genuine” if the record taken as a whole

could lead a rational trier of fact to find for the non-moving party. Id.; see also

Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct.

1348, 1356, 89 L.Ed.2d 538, 552 (1986). Finally, it is improper for the district court to

make credibility determinations on a motion for summary judgment. Rollins v.

TechSouth, Inc., 833 F.2d 1525, 1531 (11th Cir. 1987).

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Qualified Immunity

“Qualified immunity offers complete protection for government officials sued

in their individual capacities as long as their conduct violates no clearly established

statutory or constitutional rights of which a reasonable person would have known.”

Harris v. Coweta County Georgia, 433 F.3d 807, 811 (11th Cir. 2005) (quoting Lee v.

Ferraro, 284 F.3d 1188, 1193-94 (11th Cir. 2002) (internal citations and quotation

marks omitted)). This immunity “allow[s] government officials to carry out their

discretionary duties without the fear of personal liability or harassing litigation[.]”

Id. (Quoting Lee, 284 F.3d at 1193-94 (citing Anderson v. Creighton, 483 U.S. 635,

638, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987))). Thus, in order to be protected by the

shield of qualified immunity, the government official must first prove that he was

acting within the scope of his discretionary authority when the allegedly wrongful

acts occurred. Harris, 433 F.3d at 811 (citing Kesinger v. Herrington, 381 F.3d 1243,

1248 (11th Cir. 2004) (citing Vinyard v. Wilson, 311 F.3d 1340, 1346 (11th Cir. 2002))).

This next step consists of a two-part inquiry, set forth in Saucier v. Katz, 533

U.S. 194, 201, 121 S.Ct. 2151, 2156, 150 L.Ed.2d 272 (2001). First the court must ask

whether, taken in the light most favorable to the plaintiff as the party asserting the

injury, the facts alleged show the defendant’s conduct violated a constitutional right.

Harris, 433 F.3d at 812 (citing Saucier, 533 U.S. at 201, 121 S.Ct. at 2156). If,

assuming the plaintiff’s allegations are true, no such right would have been violated,

the analysis ends here. However, if a constitutional violation can be made out on the

plaintiff’s facts, the court then must consider “whether, at the time of the incident,

every objectively reasonable [officer] would have realized the acts violated already

clearly established federal law.” Harris, 433 F.3d at 812 (quoting Garrett v.

Athens-Clarke County, 378 F.3d 1274, 1278-79 (11th Cir. 2004) (citing Saucier, 533

U.S. at 201-02, 121 S.Ct. 2151, 150 L.Ed.2d 272)). If that is the case, the protections

of qualified immunity do not apply.

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Plaintiff’s retaliation claim

Viewed in the light most favorable to the plaintiff, plaintiff was placed in SHU

in retaliation for having approached Captain Boyd to complain about the policy

governing the use of knit caps and jackets and for having sought exception to this

policy. Plaintiff was returned to the general population 12 days later after an

investigation, although no disciplinary hearing appears to have been held.

It is well established that a prisoner's constitutional rights are violated if

adverse action is taken against him in retaliation for the exercise of his First

Amendment rights. See Boxer X v. Harris, ___ F.3d ___, 2006 WL 196972 (11th Cir.

2006); Redd v. Conway, ___ F.3d ___, 2005 WL 3528932 (11th Cir. 2005); Farrow v.

West, 320 F.3d 1235, 1248 (11th Cir. 2003); Mitchell v. Farcass, 112 F.3d 1483, 1490

(11th Cir.1997); Wright v. Newsome, 795 F.2d 964 968 (11th Cir. 1986); Adams v.

James, 784 F.2d 1077, 1080 (11th Cir. 1986). In the prison setting “[t]he state may not

burden [First Amendment rights] with practices that are not reasonably related to

legitimate penological objectives AAA nor act with the intent of chilling that First

Amendment right.” Harris v. Ostrout, 65 F.3d 912, 916 (11th Cir. 1995) (citing Turner

v. Safley, 482 U.S. 78, 85-89, 107 S.Ct. 2254, 2260-61, 96 L.Ed.2d 64 (1987), and

Wildberger v. Bracknell, 869 F.2d 1467, 1468 (11th Cir. 1989)). 

Retaliation against an inmate for exercising a constitutional right may be a

constitutional violation even if no separate and additional constitutional violation

ensues. Farrow, 320 F.3d at 1248 (citing Thomas v. Evans, 880 F.2d 1235, 1242 (11th

Cir. 1989) (the retaliatory penalty need not rise to the level of a separate

constitutional violation to state a claim)); see also Wright v. Newsome, 795 F.2d 964,

968 (11th Cir. 1986) (an inmate may still present a First Amendment retaliation claim

even though complaint alleges facts “that might not otherwise be offensive to the

Constitution,” such as a search or the confiscation and destruction of nonlegal

materials); Wilson v. Silcox, 152 F.Supp.2d 1345, 1351 (N.D. Fla. 2001)(citing cases).

This is because “[t]he gist of a retaliation claim is that a prisoner is penalized for

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exercising” his constitutional right to free speech, redress of grievances, or similar

activity. Mitchell v. Farcass, 112 F.3d 1483, 1490 (11th Cir. 1997) (quoting Thomas,

880 F.2d at 1242). In general, a prisoner may establish retaliation by “demonstrating

that the prison official's actions were ‘the result of his having filed a grievance

concerning the conditions of his imprisonment.’” Farrow, 320 F.3d at 1248 (citing

Wildberger, 869 F.2d at 1468). In this case, as discussed further below, plaintiff’s

description of his conversation with Captain Boyd is reasonably construed as an

attempt to informally resolve his ‘grievance’ regarding the cold-weather clothing

policy without having to resort to the written grievance process. 

A complaint which states a claim for retaliation must identify both the

retaliatory conduct and the underlying act that prompted the retaliation, which

plaintiff has done in this case. See Higgs v. Carver, 286 F.3d 437, 439 (7th Cir. 2002).

A successful plaintiff must allege a causal link between the protected activity and

the adverse treatment. Wright v. Newsome, 795 F.2d 964, 968 (11th Cir. 1986);

Jackson v. Fair, 846 F.2d 811, 820 (1st Cir. 1988); Flaherty v. Coughlin, 713 F.2d 10,

13 (2nd Cir. 1983). Such a causal connection may be alleged by a chronology of

events that create a plausible inference of retaliation. Cain v. Lane, 857 F.2d 1139,

1143 n.6 (7th Cir. 1988). For instance, the temporal proximity of an allegedly

retaliatory misbehavior report to a prisoner’s filing of a grievance may serve as

circumstantial evidence of retaliation. Gayle v. Gonyea, 313 F.3d 677, 683-84 (2nd Cir.

2002). To succeed in his claim a plaintiff must also come forward with more than

“general attacks” upon a defendant's motivations and must produce “affirmative

evidence” of retaliation from which a jury could find that plaintiff had carried his

burden of proving the requisite motive. Crawford-El v. Britton, 523 U.S. 574, 600, 118

S.Ct. 1584, 1598, 140 L.Ed.2d 759 (1998) (citing Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 256-57, 106 S.Ct. 2505, 2514, 91 L.Ed.2d 202 (1986)). Appropriate deference

should be afforded to prison officials “in the evaluation of proffered legitimate

penological reasons for conduct alleged to be retaliatory.” Pratt v. Rowland, 65 F.3d

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802, 807 (9th Cir. 1995) (citing Sandin v. Conner, 115 S.Ct. 2293, 2299 (1995)). And,

because regulatory actions taken by prison officials are presumed to be reasonable,

the inmate must produce “specific, nonconclusory factual allegations that establish

improper motive causing cognizable injury . . . “ Crawford-El, 118 S.Ct. at 1596-97;

Harris, 65 F.3d at 916-17; see also Colon v. Coughlin, 58 F.3d 865, 872 (2nd Cir. 1995)

(Because claims of retaliation may be easily fabricated, they should be reviewed with

skepticism). Here, although plaintiff offers no direct evidence of defendant’s

motive tantamount to a “smoking gun,” such as a contemporaneous statement of

intent by the defendant, he does submit other evidence in support of his claim. His

verified complaint details his version of the conversation, including the fact that it

was brief, calm and polite. The affidavit of inmate witness Wilton Daley supports

this, and includes a comment about defendant Boyd’s “reputation” for placing

inmates in confinement without ample justification. Plaintiff has also submitted the

grievances he filed after the incident, and argues that the seemingly inconsistent

statements contained in the responses are an attempt to cover up defendant’s

unlawful retaliatory motive. Finally, he suggests that a reasonable inference from

the fact that he was released from confinement after investigation is that the initial

SHU placement had been unwarranted. 

A prisoner does not automatically cast doubt upon an institutional decision,

nor is the decision “subject to exhaustive challenge,” solely because he was

engaged in an activity protected by the First Amendment. Adams, 784 F.2d at 1082;

Adams v. James, 797 F.Supp. 940, 949 (M.D.Fla.1992). An inmate may not state a

claim of retaliation where the “discipline [was] imparted for acts that a prisoner was

not entitled to perform.” Cowans v. Warren, 150 F.3d 910, 912 (8th Cir. 1998) (quoting

Orebaugh v. Caspari, 910 F.2d 526, 528 (8th Cir.1990) (per curiam)); see also, Earnest

v. Courtney, 64 F.3d 365, 366-67 (8th Cir. 1995) (per curiam) (assignment to utility

squad for gambling not retaliatory); Henderson v. Baird, 29 F.3d 464, 465, 469 (8th Cir.

1994) (assault charge not in retaliation for reporting harassment to FBI); Goff v.

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Burton, 7 F.3d 734, 738 (8th Cir.1993) (alleged retaliatory transfer); see also Graham

v. Henderson, 89 F.3d 75, 79 (2nd Cir. 1996); Wilson v. Phipps, 149 F.3d 1185 (6th Cir.

1998) (Table, text in WESTLAW). In his objection to the previous report and

recommendation, the defendant states that the court failed to properly consider that

plaintiff was not entitled to cause a potential disturbance in prison facilities and was

sent to SHU for that reason. Obviously, if the defendant’s version of events were

taken as true, no claim for retaliation would lie, regardless of the legitimacy of

plaintiff’s initial encounter with the defendant. However, at this juncture, the facts

must be taken in the light most favorable to the plaintiff, and plaintiff’s version of

events is that he had done nothing to warrant any disciplinary action. 

Standard of Review

The Eleventh Circuit has not yet established a clear standard at summary

judgment for determining the validity of First Amendment retaliation claims in the

prison setting. In the public employment setting, however, it has adopted a

four-stage inquiry based on the Supreme Court’s decisions in Pickering v. Board of

Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), and Mt. Healthy City

Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977), to

determine whether a state actor has unlawfully retaliated against an employee

because of the employee’s protected speech. See Chesser v. Sparks, 248 F.3d 1117

(11th Cir. 2001); Stanley v. City of Dalton, 219 F.3d 1280 (11th Cir. 2000); Bryson v. City

of Waycross, 888 F.2d 1562, 1565 (11th Cir. 1989). In such cases, at the first stage the

court considers as a matter of law whether the speech at issue may be fairly

characterized as constituting speech on a matter of public concern. Chesser, 248

F.3d at 1122. If it may be, at the second stage the court applies a balancing test to

determine whether as a matter of law the employee’s free speech interest outweighs

the interest of the state in promoting the efficiency of the public services it performs

through its employees. Pickering, 391 U.S. at 568, 88 S.Ct. 1731. If the employee’s

interests outweigh those of the state, the inquiry proceeds to the third stage, which

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1

In m aking this inquiry the court may consider such factors as whether there is a closeness in time between

the protected speech and the adverse action such that retaliatory intent may be inferred; whether any

com ments or actions by the defendant related to the protected speech; whether the asserted reason for the

adverse action changed over time; and whether there is circumstantial evidence of a causal nexus between

the protected speech and the adverse action from which retaliatory intent m ay be inferred. Stanley, 219 F.3d

at 1291, n. 20 (citations omitted). In determining whether circumstantial evidence exists court may inquire as

to who initiated any internal investigations or termination proceedings, whether there was any evidence of the

decision-m aker’s hostility to the speech in question, or whether the defendant had a m otive to retaliate. Id.

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asks whether as a matter of fact “there is a ‘substantial’ causal link between the

employee’s speech and the adverse employment action.” Mize v. Jefferson City Bd.

of Educ., 93 F.3d 739, 742 (11th Cir. 1996) (citing “Bryson” test); see also Brochu v.

City of Riviera Beach, 304 F.3d 1144, 1157 (11th Cir. 2002) (citing Mount Healthy, 429

U.S. at 287, 97 S.Ct. 568). The record as a whole should be examined to determine

whether a plaintiff has met his burden of showing that the protected conduct was

a substantial or motivating factor in a government employment decision. Stanley,

219 F.3d at 1291 (citations omitted).1 With respect to the third stage of the four-stage

inquiry, “[w]here causation is lacking, an employee’s claim of retaliatory discharge

must fail AAAA” Mize, 93 F.3d at 742.

If the employee shows that his speech was a substantial motivating factor in

the adverse decision, the court must address at the fourth and final stage whether

the employer has shown by a preponderance of the evidence that it would have

reached the same decision regardless of the protected conduct. Chesser, 248 F.3d

at 1123; Bryson, 888 F.2d at 1566 (quoting Mt. Healthy, 429 U.S. at 287, 97 S.Ct. 568).

See also Vista Community Services v. Dean, 107 F.3d 840, 844-45 (11th Cir. 1997).

“This fourth stage has been referred to as a ‘but for’ test; the employer must show

that ‘its legitimate reason, standing alone, would have induced it to make the same

decision.’” Bryson, 888 F.2d at 1566 (quoting Price Waterhouse v. Hopkins, 490 U.S.

228, 258, 109 S.Ct. 1775, 1795, 104 L.Ed.2d 268 (1989)). In other words, the question

at stage four is whether the plaintiff would have suffered the adverse action “but for”

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2

In applying the Mount Healthy burden-shifting framework courts should incorporate the deferential

balancing test articulated in Turner v. Safley, 482 U.S. at 89, 107 S.Ct. 2254 (holding that official conduct that

impinges on the constitutional rights of an inmate is valid if it is “reasonably related to legitimate penological

interests”). See Rauser, 241 F.3d at 334; see also Hewitt v. Helms, 459 U.S. 460, 472, 103 S.Ct. 864, 74

L.Ed.2d 675 (1983) (stating that prison officials are allowed wide discretion to provide for the security, safety,

and orderly operation of prison facilities), modified on other grounds, Sandin v. Conner, 515 U.S. 472, 115

S.Ct. 2293, 132 L.Ed.2d 418 (1995). “This means that, once a prisoner demonstrates that his exercise of a

constitutional right was a substantial or motivating factor in the challenged decision, the prison officials may

still prevail by proving that they would have made the same decision absent the protected conduct for reasons

reasonably related to a legitimate penological interest.” Rauser, 241 F.3d at 334.

Case No: 5:03cv25/MMP/MD

his exercise of speech protected by the First Amendment. See Givhan v. Western

Line Consol. Sch. Dist., 439 U.S. 410, 417, 99 S.Ct. 693, 697, 58 L.Ed.2d 619 (1979).

While there is a lack of clear guidance from the Eleventh Circuit with regard

to First Amendment retaliation claims made by prisoners, other circuits have

addressed the matter, resulting in the development of an instructive body of case

law. The Second, Third, Sixth, and Seventh Circuits have expressly applied the

Mount Healthy burden-shifting framework to retaliation claims in the prison context.

See Rauser v. Horn, 241 F.3d 330 (3rd Cir. 2001); Thaddeus-X, 175 F.3d at 386;

Graham v. Henderson, 89 F.3d 75, 80 (2nd Cir. 1996); Babcock v. White, 102 F.3d 267,

275 (7th Cir.1996). Under this line of cases the plaintiff must prove: (1) that he was

engaged in constitutionally protected activity; (2) that he suffered adverse action

such that would deter a person of ordinary firmness from continuing to engage in

that conduct; and (3) that “there is a causal connection between elements one and

two-that is, the adverse action was motivated at least in part by the plaintiff’s

protected conduct.” Brown v. Crowley, 312 F.3d 782, 787 (6th Cir. 2002) (citing

Thaddeus-X ); see also Rauser, 241 F.3d at 333-34; Dawes, 239 F.3d at 492-93. If the

prisoner establishes that his exercise of the protected right was a substantial or

motivating factor in the defendant’s alleged retaliatory conduct, the burden then

shifts to the defendant to show that the same action would have been taken even

absent the protected conduct.2 Brown, 312 F.3d at 787; Rauser, 241 F.3d at 333-34;

Babcock, 102 F.3d at 275. In the context of prisoner cases, in determining whether

a causal connection exists the court may choose to consider such factors as the

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3

In Adams v. Wainwright, 875 F.2d 1536, 1537 (11th Cir. 1989) (per curiam), a First Amendment retaliation

case in the prisoner context, the Government urged the Eleventh Circuit to adopt the “but for” standard set

forth by the First Circuit in McDonald, in which the burden remains on the prisoner/plaintiff rather than shifting

to the defendant. W ithout discussion the court declined to do so, “to the extent that the ‘but for’ test places

a greater burden of proof on the inmate.” Adams, 875 F.2d at 1537 (citing Hall v. Evans, 842 F.2d 337 (11th

Cir. 1988) (table decision vacating district court order granting sum mary judgment to Defendants based on

“but for” analysis)).

Case No: 5:03cv25/MMP/MD

temporal proximity between the prisoner’s protected activity and the defendant’s

adverse action, as well as statements made by the defendant regarding his

motivations. See Colon v. Coughlin, 58 F.3d 865, 872-73 (2nd Cir. 1995). A prisoner

can establish retaliatory motive by alleging a chronology of events from which a

retaliatory animus on the part of the defendant could reasonably be inferred. Woods,

60 F.3d at 1166 (citing Cain v. Lane, 857 F.2d 1139, 1143 n. 6 (7th Cir.1988)).

Other circuits have also recognized Mount Healthy in reviewing retaliation

claims by prisoners but without adopting its burden-shifting framework. See

Peterson v. Shanks, 149 F.3d 1140, 1144 (10th Cir. 1998) (requiring prisoner to come

forward with direct or circumstantial evidence that “but for the retaliatory motive, the

incidents to which he refers AAA would not have taken place”); Goff v. Burton, 7 F.3d

734, 737 (8th Cir. 1993) (acknowledging Mount Healthy but stating that in retaliatory

transfer case prisoner must prove “but for” the retaliatory motive the allegedly

unconstitutional conduct would not have occurred); cf. Woods v. Smith, 60 F.3d

1161, 1166 (5th Cir.1995) (citing Mount Healthy but indicating that burden remains

on prisoner to show that “but for” the retaliatory motive the complained of incident

would not have occurred); McDonald v. Hall, 610 F.2d 16, 18 (1st Cir. 1979) (same).3

 The Eleventh Circuit has not yet expressly applied the Pickering/Mount

Healthy analysis in the context of a prisoner First Amendment retaliation claim. As

noted above, however, it has long applied this analysis in the employment setting.

See Bryson, supra; see also Chesser and Stanley, supra. In addition, as previously

discussed, numerous circuit courts of appeals have found prisoner and employment

retaliation claims sufficiently analogous to adopt or acknowledge this standard in

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4

It is also worth noting that the elements of a prima facie case in retaliation claims brought by prisoners

under the First Am endment in the Second, Third, and Sixth Circuits, as set out above, are quite sim ilar to

those set forth by the Eleventh Circuit in the context of retaliation claims brought under 42 U.S.C. §

2000e-3(a). The Eleventh Circuit has explained that in such cases the plaintiff must show (1) that he was

engaged in statutorily protected activity; (2) that he suffered an adverse em ployment action; and (3) that there

is a causal connection between the two events. Brochu, 304 F.3d at 1155.

Case No: 5:03cv25/MMP/MD

prisoner cases, either with or without the burden-shifting framework.4 See Rauser,

Thaddeus-X, Graham, and Babcock, supra (applying the Mount Healthy

burden-shifting analysis), and Peterson, Goff, Woods, and McDonald, supra

(referencing Mount Healthy but not applying the burden-shifting analysis); see also

Adams v. Wainwright, 875 F.2d at 1537 (declining to adopt “but for” standard in

prisoner First Amendment retaliation case which would place greater burden of

proof on inmate). This court has previously applied the Mount Healthy

burden-shifting framework to First Amendment claims of retaliation brought by

prisoners and shall do so in this case. See Pate v. Peel, 256 F.Supp.2d 1326, 1337-

40 (N.D. Fla. 2003). 

Conclusion of Law Regarding Material Facts

 As noted above, this case was remanded in part for a consideration of the

issue of qualified immunity. Because defendant asserts his entitlement to qualified

immunity, the court must first consider whether plaintiff’s allegations regarding

defendant’s conduct, if true, establish the violation of a constitutional right. Saucier,

533 U.S. at 201, 121 S.Ct. 2151. To make this showing and survive summary

judgment on his retaliation claim, plaintiff must demonstrate from the evidence that

a genuine issue of material fact exists on the questions whether he was engaged in

constitutionally protected activity; whether he suffered adverse action; and whether

his exercise of the protected right was a substantial or motivating factor in the

defendant’s alleged retaliatory conduct. See Celotex, 477 U.S. at 324, 106 S.Ct. 2548;

Mount Healthy, 429 U.S. at 287, 97 S.Ct. 568; Stanley, 219 F.3d at 1290; Rauser, 241

F.3d at 333-34; Thaddeus-X, 175 F.3d at 386; Dawes, 239 F.3d at 492-93. 

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5

In plaintiff’s affidavit, attached to his response to the special report, he refers to exhibits A through E of

his complaint. The court therefore accepts that for purposes of this motion, the allegations in the attachments

to the complaint are sworn under penalty of perjury. Sammons v. Taylor, 967 F.2d 1533, 1545 n. 5 (11th Cir.

1992); Perry v. Thompson, 127 786 F.2d 1093, 1095 (11th Cir. 1986). 

 

6An inmate has a First Amendm ent right to file grievances against prison officials, but only if the grievances

are not frivolous. See Lewis v. Casey, 518 U.S. 343, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996) (“Depriving

someone of a frivolous claim AAA deprives him of nothing AAAA”). The court accepts for purposes of this motion

Case No: 5:03cv25/MMP/MD

The critical issue in this analysis is what happened during the conversation

between plaintiff and Captain Boyd, an issue about which there is significant and

material factual dispute. Plaintiff maintains that he politely inquired of a supervising

officer about the new policy regarding use of knit caps, and that he was ordered

handcuffed when he merely pointed out another correctional officer’s cold weather

attire as he turned to leave.5 According to the affidavit of fellow inmate Wilton Daley

(doc. 69), the conversation was conducted in low tones and was short-lived. Daley

observed the plaintiff pointing to two CO’s before Captain Boyd gestured towards

the plaintiff and he was taken to SHU. Captain Boyd’s recollection of events is that

plaintiff’s conduct went well beyond mere “inquiry,” and that his argumentative

nature made it necessary to secure him in the SHU to ensure the safe, secure and

orderly operation of the facility. Defendant does not dispute that plaintiff was

entitled to speak to him to address matters of concern, only the disrespectful

manner in which he alleges it was done. 

Although each party’s description of what happened may appear reasonable

as that party has presented it, each version of events clearly cannot be correct.

Depending on whose version of events is found more credible, the issue of whether

there was or was not a constitutional violation is simple to resolve. Although the

trier of fact may ultimately conclude otherwise, at this juncture the court must take

the facts in the light most favorable to the plaintiff. After so doing, the court accepts

that plaintiff has met his burden in demonstrating that he engaged in constitutionally

protected activity in his attempt to informally resolve the knit cap issue through his

conversation with Captain Boyd.6 Regardless of whether a liberty interest or

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that it was not frivolous to dispute a policy disallowing the use of cold weather protective gear when

temperatures were in the low 40's. Although the court is unaware of any case law dealing specifically with a

prisoner’s First Amendment rights to attempt to redress grievances orally, rather than in writing, based on

plaintiff’s characterization of his conversation as an attempt to avoid the written grievance process, it accepts

that the First Amendm ent protections extend to plaintiff’s speech as well.

 

7Sheley v. Dugger, 833 F.2d 1420, 1424 (11th Cir. 1987) (holding that a liberty interest in remaining in the

general population is created for an inmate by the FDOC’s rules and regulations concerning administrative

segregation and close managem ent); cf. Sandin v. Conner, 515 U.S. 472 (1995) (holding that 30-day

placement in segregated confinement was not a due process violation); Welch v. Bartlett, 196 F.3d 389, 392

(2nd Cir. 1999) (examining conditions of confinement in SHU to determine whether they constituted an atypical

and significant hardship). It is not necessary that the SHU placement itself was a constitutional violation for

plaintiff to state a constitutional claim. Farrow; Wright; supra.

Case No: 5:03cv25/MMP/MD

plaintiff’s due process rights may have been implicated,7 clearly, plaintiff’s

placement in SHU was, or was intended to be, an adverse action. And, clearly, his

conversation with Captain Boyd was a substantial or motivating factor in this

placement. 

The next question in the qualified immunity analysis is whether the right

allegedly violated, the right to be free from retaliation for the exercise of a First

Amendment right, was clearly established. As noted above, it has long been

established that a prisoner's constitutional rights are violated if adverse action is

taken against him in retaliation for the exercise of his First Amendment rights. See

Farrow v. West, 320 F.3d 1235, 1248 (11th Cir. 2003); Mitchell v. Farcass, 112 F.3d

1483, 1490 (11th Cir.1997); Wright v. Newsome, 795 F.2d 964 968 (11th Cir. 1986);

Adams v. James, 784 F.2d 1077, 1080 (11th Cir. 1986). Placing an inmate in SHU for

no other reason than to retaliate against him for exercising a constitutional right, as

alleged by plaintiff, clearly would not be protected by the shield of qualified

immunity. 

In his objections, the defendant asks that this court give deference to the

regulatory nature of his action in placing plaintiff in special housing and that the

court presume that his actions were reasonable. Absent a factual determination of

what happened on the date of the conversation in question, this court cannot

conclude that the defendant’s actions were reasonable, because to do so would

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Case No: 5:03cv25/MMP/MD

require a credibility determination. The court reiterates that at this juncture, since

the defendant is the moving party, the facts must be taken in the light most favorable

to the plaintiff. Shading the facts in this light, there was no apparent justification for

plaintiff’s placement in SHU or any disciplinary action after a calm, short-lived,

polite conversation questioning the prohibition on the use of cold weather gear in

inclement weather. Therefore, the defendant is not entitled to summary judgment,

and the motion for summary judgment should be denied. 

Accordingly, it is respectfully RECOMMENDED:

That the defendant’s special report (doc. 48) construed as a motion for

summary judgment, be DENIED, and this case be referred to the undersigned for

further proceedings.

At Pensacola, Florida, this 13

th day of February, 2006.

 /s/ Miles Davis

MILES DAVIS

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

Any objections to these proposed findings and recommendations must be filed

within ten days after being served a copy thereof. A copy of objections shall be

served upon any other parties. Failure to object may limit the scope of appellate

review of factual findings. See 28 U.S.C. § 636; United States v. Roberts, 858 F.2d

698, 701 (11th Cir. 1988).

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