[ PUBLISH] 

## In the 

# United States Court of Appeals For the Eleventh Circuit

____________________
No. 22

- 11738

____________________
GERMAINE SMART,
Plaintiff

- Appellant,

versus COII RONALD ENGLAND, GARY MALONE, LARRY BAKER,

Defendants

- Appellees.

____________________ Appeal from the United States District Court for the Northern District of Alabama D.C. Docket No. 4:19

- cv

- 00471

- MHH

- JHE USCA11 Case: 22-11738 Document: 56-1 Date Filed: 02/16/2024 Page: 1 of 452 Opinion of the Court 22

- 11738

____________________
Before W ILLIAM P RYOR , Chief Judge, and A BUDU and E D C ARNES , Circuit Judges.

W ILLIAM P RYOR , Chief Judge : This appeal requires us to decide whether prison officials Ronald England, Gary Malone, and Larry Baker enjoy qualified immunity from prisoner Germaine Smart’s complaint of retaliation for exercising his right, under the First Amendment, to report official misconduct

. Smart alleg ed that England sexually assaulted him during a pat

- down search

. After a prison investigator determined that Smart’s allegations of sexual assault were u nfounded
, England charged Smart with the disciplinary infraction of “Lying

. ” A disciplinary tribunal later found that Smart’s allegations were false and
sanction ed him for lying. The district court granted summary judgment for the officials based on qualified immun ity. Because the officials did not violate Smart’s First Amendment right
, we affirm

. I. BACKGROUND In September 2016, Captain Gary Malone of the Alabama Department of Corrections ordered five prison offi cer s , including Sergeant Ronald Englan d, to search Germaine Smart’s cellblock. England approached Smart ’s prison cell , ordered him to strip down to his boxer shorts, and instructed him to stick his arms out of the cell door tray hole so that Smart could be handcuffed for a “ shakedown.” S mart exited his cell in only boxer shorts

. Within view of

two other prison officers and two prisoners in adjacent cells
, USCA11 Case: 22-11738 Document: 56-1 Date Filed: 02/16/2024 Page: 2 of 4522

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England conducted a pat

- down search of Smart’s “waist band, groin and buttock area.” A pat

- down search , under prison operating procedures, r equires “pressing one’s hands against and over the

. . . clothed body” of the individual being searched. N one of the witnesses observed

— and Smart himself does not allege

— that England removed Smart’s boxer shorts or touched Smart’s unclothed groin during the pat

- down. England found no contraband and returned Smart to his cell without further incident.
Smart filed a n administrative complaint of misconduct a few days later. The complaint a llege d that
, during the pat

- dow n, England “began to fondle Smart [’] s penis and scrotum,” at which point Smart interjected
, “What the f

-- k are you doing grabbing my d

-- k and nuts

. . . I’m not gay!” England allegedly “snickered with a smile showing gratifying sexual desire .” The prison c onducted an administrative investigation in response to Smart’s complaint. The Investigations and Intelligence
Division assigned George Bynum to investigate . Bynum interviewed seven witnesses: Smart, England, two other prisoner s, and three other prison offic er s. During his interview, Smart reiterated his written account that England had “fondle [ d ] ” his penis. Both prisoner s corroborated Smart’s complaint

. Smart’s cellblock neighbor recounted that during the search, Sergeant England had

“ pulled on inmate Smart’s private part twice

. ” A nd the prisoner who occupied the cell across from Smart recounted that Sergeant England had “ massaged inmate Smart [’s] penis.” T he prison officers , in contrast, deni ed seeing any mis conduct. The t wo closest USCA11 Case: 22-11738 Document: 56-1 Date Filed: 02/16/2024 Page: 3 of 454 Opinion of the Court 22

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officers, who were about three and eight feet away respectively, reported that England had “ conducted a pat

- search[]”and had “checked [ Smart’s ] waist band and groin area.” In his investigative report, Bynum found that England “properly patted down inmate S mart” and “follow[ed the prison’s] Standard Operating Procedure ” for “ performing a pat

- down search .” The standard ized report form provides only four optionsfor case dispositions: “Substantiated,” “Unsubstantiated,” “Unfounded,” and “Cleared by Arrest.” By num marked the case disposition “Unfounded
, ” which is the option that most strongly corresponds to falsity

— it means the allegation “was investigated and determined not to have occurred.” Ala. Dep’t of Corr. Admin. Reg. 454, § III(A)(2). Bynum’s supervisors approved his report a week later. England initiated disciplinary proceedings against Smart. Two days after the approv al of Bynum’s report, England served Smart with a preliminary disciplinary report charging him with “Lying,” a medium

- l evel disciplinary infraction. The Department regulations define “Lying” as “[g]iving false testimony or making afalse charge to an employee with the intent to deceive the employee or to prejudice another person.” Ala. Dep’t of Corr. Admin. Reg. 403 , Rule 512

. The regulations also prohibit “issu[ing]” a disciplinary report for lying based “solely” on an “unfounded” sexual assault accusation:Disciplinary action may be taken when an investigation by the IPCM and/or I&I Investigator determines USCA11 Case: 22-11738 Document: 56-1 Date Filed: 02/16/2024 Page: 4 of 4522

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that an inmate made a false report of sexual abuse or sexual harassment. However, an inmate reporting sexual abuse or sexual harassment, shall not be issued a disciplinary report for lying based solely on the fact that their allegations were unfounded or that the inmate later decides to withdraw his / her allegation. Ala. Dep’t of Corr. Admin. Reg. 454
, § V(H)(2)(b)
, (c). After being served with the report , Smart refused to sign it and denied guilt

. To adjudicate whether Smart had committed the infraction of “Lying,” the prison held a disciplinary hearing. Lieutenant Larry Baker oversaw that hearing . Smart was given the opportunity to submit pre

- hearing questions to three individuals that Bynum had interviewed: two prisoner s and a p rison offic er . Smart also called those individuals to testify at the hearing. One prisoner testified that he “saw [Sergeant] England grab inmate Smart [’s] penis
, ” and the other testified that “England reach [ed] around and grabbed inmate Smart [’s] penis.” The prison offic er testified that
, during the pat

- down, he “heard inmate Smart make the allegation that [Sergeant] England grabbed his penis.” England testified that he denied the allegation. At the close of the disciplinary hearing, Baker found S mart guilty of “Lying.” As the basis for his finding, Baker stated that he “believe[d] the sworn testimony” of England that he “conducted a pat search” of S mart, and “accept[ed] the finding of I & I investigator Bynum” that Smart’s allegations were unfound ed. Baker USCA11 Case: 22-11738 Document: 56-1 Date Filed: 02/16/2024 Page: 5 of 456 Opinion of the Court 22

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recommended the loss of privileges for 30 days and disciplinary segregation for 21 days, and Malone approved the sanctions.

Smart filed suit pro se

. He allege d that prison officials England, Baker, and Malone “retaliated against [ him ] for reporting the incident of sexual assault” in violation of the First Amendment

. See 42 U.S.C. § 1983. Smart demanded injunctive relief and $100,000 in damages . In lieu of discovery, a magistrate judge ordered the officials to file a special report wit h the sworn testimony of all knowledgeable individuals , which would be treated as a motion for summary judgment. All three officials invok ed qualified immunity.Smart opposed the motion and argued that England’s “unlawful issuance ” of the disciplinary repo rt was “motivated by his desire to discredit Plaintiff [’s] ‘protected speech’ ” and to “ whitewash Defendant England [’s] abussive [sic]
, and shameful homosexual act.” Smart asserted that the prison regulations g a ve England and Baker “ no leeway or authority” to issue the disciplinary report

. T he magistrate judge recommended granting the officials’ motion for summary judgment. He found that qualified immunity barred S mart ’s complaint because no clearly established law prohibited the officials from disciplining Smart . The district court adopted the magistrate judge ’s recommendation and granted summary judgment for the officials

. It found that no clearly established law put the officials on notice that viol ating Department Regulation 454 could be un c onstitutional retaliatory conduct

. USCA11 Case: 22-11738 Document: 56-1 Date Filed: 02/16/2024 Page: 6 of 4522

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II. STANDARD OF REVIEW

We review de novo a summary judgment based on qualified immunity. Williams v. Aguirre , 965 F.3d 1147, 1156 (11th Cir. 2020).Summary judgment is appropriate when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” F ED

. R. C IV

. P. 56(a).

III. DISCUSSION

State officials enjoy qualified immunity from complaints for damages under section 1983 when they act within their discretionary authority and do not violate a ny clearly established federal right

. See Laskar v. Hurd , 972 F.3d 1278, 1284 (11th Cir. 2020). A n official “bears the initial burden to prove that he acted within his discretionary authority.” Dukes v. Deaton , 852 F.3d 1035, 1041 (11th Cir. 2017). O fficia l s who satisfy that burden are entitled to qualifiedimmunity unless “(1) they violated a federal statutory or constitutional right, and (2) the unlawfulness of their conduct was clearly established at the time .” Laskar , 972 F.3d at 1284 (quoting Dist rict of Columbia v. Wesby
, 138 S. C t. 577 , 589 (2018) ) (internal quotation marks omitted ).

Smart makes two arguments for reversal. He argues th at the officials lacked the discretionary authority to violat e prison administrative r egulation s

. He also argues that the officials violated his clearly established right , under the First Amendment, to be free from retaliation after filing a complaint of sexual assault . We reject both of Smart’s arguments in turn

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A. The Officials Acted Within Their Discretionary Authority

. To be eligi ble for qualified immunity, an official must provethat he was performing a “discretionary function” when he engaged in the alleged conduct. Holloman ex rel. Holloman v. Harland
, 370 F.3d 1252, 1264 (11th Cir. 2004) ( quoting Harlow v. Fitzgerald
, 457 U.S. 800, 818 (1982)) (internal quotation marks omitted)

. The official acts within his discretionary authority when he “perform[s] a legitimate job

- related function

. . . through means that were within his power to utilize.” Id . at 1265. We examine a job

- r elated function at “a general level rather than in [a] specific application
, ” while tak ing care not to assess the function at “such a high level of abstraction” that “ it becomes impossible to determine whether the employee was truly acting within the prope r scope of his job

- related activities .” Id. at 126 6

– 6 7

. The officials exercised discretionary authority. We ha ve repeatedly explain ed that the “administration of discipline” is a job

function defined at the appropriate level of generality for the analysis of a public official’s discretionary authority. I d. (citation and internal quotation marks removed) (e x plaining that disciplining a student was a “legitimate prerogative []” of a teacher’s job ) ; see also Harbert Int’l Inc. v. James , 157 F.3d 12 71, 1282

– 83 (11th Cir. 1998) ( concluding that public officials ’ “ discretionary duties included the administration of discipline ” ) ; Sims v. Metro. Dade C ounty , 972 F.2d 1230, 1236 (11th Cir. 1992) (same)

. P rison officials ’ duties include disciplin ing prisoner s for behavioral infractions. See Ala. Code § 14

- 1

- 4(a) (providing that the Department shall determine the USCA11 Case: 22-11738 Document: 56-1 Date Filed: 02/16/2024 Page: 8 of 4522

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“qualifications, duties, and authority” of prison officials); Ala. Dep’t of Corr. Admin. Reg. 403 (defining the infractions , including “Lying ,” for which officials may administer discipline). So the officials perform ed a legitimate, job

- related function when they disciplined Smart for violating a prison rule prohibiting lying. Our dissenting colleague asserts that the officials exceeded their discretionary authority by violating Regulation 454 and by conducting an “ unlaw ful hearing ” to adjudicate whether Smart lied

. Dissent at 1 5

. But our colleague misreads Regulation 454. See Ala. Dep’t of Corr. Admin. Reg. 454 . That regulation does not altogether prohibit prison officials from disciplining a prisoner after a false sexual assault allegation

. Indeed, s ection V(H)(2)( b ) of the regulation expressly allows such disciplinary action s. Id. § V(H)(2)( b ) (“D isciplinary action may be taken when an investigation by the .

. . [ Investigations and Intelligence] Investigator determines that an inmate made a false report of sexual abuse or sexual harassment .”).

R egulation 454 instead provides heightened procedural protection s for prisoner s who have made sexual assault allegations :

s ection V(H)(2)( c ) provides that a prisoner cannot be “ issued a disciplinary report for lying ” based “ solely on the fact that their allegations were unfounded.” Id. § V(H)(2)( c ) (emphasis added)

. T he phrase “issued a disciplinary report” is best read to mean the final imposition of sanctions , not the serving of charges on a prisoner

. The overall report

— i.e., the portions incorporating the officer’s factual findings, determination of guilt, and recommended sanctions

— is USCA11 Case: 22-11738 Document: 56-1 Date Filed: 02/16/2024 Page: 9 of 4510 Opinion of the Court 22

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labeled the “Disciplinary Report.” The charging form comprises only the first page of the disciplinary report. And the report refers to the delivery of notice of a disciplinary charge to a prisoner as “serv[ing],” not “issu[ing],” the report. In other word s, section V(H)(2)(c) requires final sanctions to be based on more than “solely” on an investigative finding. Prison officers owe a prisoner processand the consideration of more evidence than a singular investigator’s report, before sanctioning him for lying about sexual assault. Regulation 454 does not forbid officers from initiating the disciplinary process , “serv [ ing ] ” a prisoner with cha rges, or holding a disciplinary hearing. To read the regulation otherwise would eliminate section V(H)(2)(b)’s express provision for disciplinary actions against prisoners who ma k e false allegations. Id. § V(H)(2)(c)

. Regulation 454 could not forbid officers from conducting a hearing after an investigative determination of “unfounded
, ” because every such disciplinary action would follow an “unfounded” determination

— t he investigative report form provides “unfounded” as the option most evidencing falsity
, and there is no option for “false.” So t he officials did not violate Regulation 454 by charg ing Smart

. Nor did the officers issue Smart a disciplinary report based “solely” on Bynum’s investigative finding that Smart’s allegations were “unfounde d.” Instead, the officers held a full disciplinary hearing to adjudicate whether Smart had lied : Smart and England testified before a hearing officer who had the opportunity to assess their credibility ; Smart submitted written questions to three additional witnesses ; and those witnesses testified by at the hearing and had USCA11 Case: 22-11738 Document: 56-1 Date Filed: 02/16/2024 Page: 10 of 4522

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their statements incorporated into the disciplinary report. A s the basis for the guilty determination and sanctions , the hearing officer credited not only Bynum’s report, but als o “the sworn testimony of [Sergeant] England.” So the officers complied with Regulation 454 and acted within the scope of their discretionary authority in disciplining Smart. B. The Officials Did Not Violate Smart’s First Amendment Right.

Smart contend s th at the officials retaliated against him in violation of his right to the freedom of speech . For Smart to establish a violation of his constitutional r ight , he had to prove that he engaged in protected speech
, th at officials retaliat ed against him
, an adverse effect on his protected speech, and a causal rela tion ship between the retaliat ion and the adverse effect. See Bennett v. Hendrix
, 423 F.3d 1247, 1250 (11th Cir. 2005). A prison er may state a claim under the First Amendment whe n he alleges that h e was “punishedfor filing a grievance concerning the conditions of his imprisonment.” Boxer X v. Harris , 437 F.3d 1107, 1112 (11th Cir. 2006), abrogated in part on other grounds by Wilkins v. Gaddy , 559 U.S. 34 (2010). But w e have held that a prisoner’s v iolat i on of a prison regulation
is unprotected by the First Amendment

. See O ’ Bryant v. Finch , 637 F.3d 1207, 1215 (11th Cir. 2011) ; Smith v. Mosley , 532 F.3d 1270, 127 7(11th Cir. 2008) (“[I]f a prisoner violates a legitimate prison regulation, he is not engaged in protected conduct [under the First Amendment]. ” (citation and internal quotation marks omitted) ).

A prisoner cannot prove a claim of retaliation based on a
pr ison disciplinary charge whe n “the inmate was found guilty of USCA11 Case: 22-11738 Document: 56-1 Date Filed: 02/16/2024 Page: 11 of 4512 Opinion of the Court 22

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the actual behavior underlying that charge

. ” O ’ Bryant , 637 F.3d at
1215. A prison tribunal’s finding that a prisoner committed the disciplinary infraction is dispositive , so long as the prisoner was afforded due process and “some evidence in the record” supports the finding of guilt

. Id. at 1213 (emphasis omitted) (quoting Superintendent v. Hill , 472 U.S. 445, 454 (1985))

. Due process in this context “does not require examination of the e ntire record, independentassessment of the credibility of witnesses, or weighing of the evidence.” Id. (citation and internal quotation marks omitted). And the “some evidence” standard is satisfied by even a “meager” showing, so long as “the record is not so devoid of evidence” as to render the tribunal’s determination “arbitrary.” Hill , 472 U.S. at 457. Smart argues that our holding in O’Bryant and Mosley

— that

a n actual disciplinary violation is un protected under the First Amendment

— do es not apply whe n the officials unlawfully initiate d the disciplinary proceedings. According to Smart, England violated Regulation 454 by unlawfully charging Smart with “Lying” after Smart’s sexual assault complaint was determined to be unfounded

. See Ala. Dep’t of Corr. Admin. Reg. 454, § V(H)(2)(c)

. But

as we have explained, Smart misreads Regulation 454 . T he officials complied with prison regulation s in issu ing Smart’s disciplinary report , so there is no reason to depart from our precedent s

. O’Bryant and Mosley control

. The officials afforded Smart due process

— a tribunal before which he testif ied and present ed evidence

— and found him guilty based on “some evidence

. ” See Hill
, 472 U.S. at 457. So whether Smart “actually committed the charged USCA11 Case: 22-11738 Document: 56-1 Date Filed: 02/16/2024 Page: 12 of 4522

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infraction ” of lying, and whether “ the disciplinary report falsely accuses [Smart] are questions of fact that are decided by the disciplinary panel.” O’Bryant
, 637 F.3d at 1215. To conclude otherwise would “render the prison disciplinary system impotent by inviting prisoners to petition the courts fo r a full retrial each time they are found guilty of an actual disciplinary infraction after having filed a grievance .” Id. at 1216. And like in Mosley
, S mart’s administrativ e complaint “included false statements and w[as], thus, unprotected speech.” Dissent at 2 1 (citing Mosley
, 532 F.3d at 1276). Because a prison tribunal found that Smart committed the actual disciplinary infraction of “Lying” after a hearing , he cannot “sta te a retaliation claim against the prison employee who reported [his] infraction

. ” O’Bryant
, 637 F.3d at 12 1 5

. T he officials enjoy qualified immunity.

W e agree with our dissenting colleague that reports of “rampant sexual abuse ” and the high incidence o f sexual assault allegations against prison officers are deeply troubling. Dissent at 7

– 1 3

. But we cannot endors e an approach that allow s population

- level
crime statistics to affect the determination of an individual defendant’s culpability. A “ pattern” of misconduct within a population, id. at 13, does not make a particular defendant culpable. That prison officers are report ed to commit “physical and sexual violence” at elevated rates, see id. at 12, has no bearing on whether England assaulted Smart

. Nor can statistical evidence diminish the procedural protections to which England is entitled. W here Smart’s allegations agains t England were found to be untruthful by both a prison investigator and a disciplinary tribunal, Smart does not get a third bite of the apple in the form of this suit for $100,000 in damages. USCA11 Case: 22-11738 Document: 56-1 Date Filed: 02/16/2024 Page: 13 of 4514 Opinion of the Court 22

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IV. CONCLUSION

W e AFFIRM the judgment for England, Malone, and Baker

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- 11738 A BUDU , J., Dissenting 1

A BUDU , Circuit Judge, Dissenting: This case presents the issue of whether Germaine Smart, who is incarcerated at the St. Clair Correctional Facility in Alabama, can be charged and punished with “lying” for accusing a prison guard of sexual assault

— even though the investigation upon which the charge and punishment were based only determin ed that Smart’s allegations against the guard were “ unfounded ” as opposed to untruthful. Because the First Amendment, the Prison Rape Elimination Act (“PREA”), and the PREA

- based regulations that the Alabama Department of Corrections promulgated clearly e stablish that prison officials cannot punish an inmate for filing an

“ unfounded ” grievance, the district court erred in granting Defendants Sergeant Ronald England, Captain Gary Malone, and Lieutenant Larry Baker qualified immunity. Therefore, the distric t court’s grant of summary judgment should be reversed, and the case should be remanded for further proceedings.

I. SMART’S ALLEGATIONS OF SEXUAL ASSAULT AND DEFENDANTS’ RESPONSE On or around September 6, 2016, Malone ordered England and other guards to searc h Smart’s cell block based on a tip that another inmate might be planning to escape. At approximately
9 :00 p.m., England approached Smart’s cell to conduct a search. Given the late hour, Smart was lying on his bunk, but he was still fully clothed. Engla nd ordered Smart to take off all his clothes except for his underwear and to put his arms out of the tray hole so that England could handcuff him. Smart

— in his underwear
, USCA11 Case: 22-11738 Document: 56-1 Date Filed: 02/16/2024 Page: 15 of 452 A BUDU , J., Dissenting 22

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handcuffed, and outside of his cell in view of other inmates and guards

— turned aroun d at England’s direction so that England could physically search him. A ccording to Smart, during the search, England began fondling his penis and scrotum. England never denied that Smart was partially naked and that he touched Smart’s genitals. Smart, w ho was shocked and offended by England’s manner of touching him, yelled out: “What the fuck are you doing grabbing my dick and nuts [?] I’m not gay!” Instead of explaining to Smart why the physical search of his penis and scrotumwas proper, or expressly denying that he did anything inappropriate, England just snickered and order ed Smart to step aside so he could search his cell . England left after n ot finding any contraband in Smart’s cell

. While it is undisputed that England touched Smart’s genitals and scrotum, a question of fact remains as to whether England’s conduct rose to the level of sexual abuse or was in accordance with St. Clair’s strip s earch policy. Regardless, at this stage of the litigation
, we must accept Smart’s allegation that England inappropriately touched him in violation of prison policies. On either September 8 or 9 1 , Smart filed a formal grievance against England for sexua l abuse and reported the inappropriate conduct to Malone. In his grievance, Smart identified three witnesses to the abuse who corroborated Smart’s account

— two individuals who were incarcerated in cells near him and a prison guard

1 Although Smart’s pro se Complaint states September 8, 2016, as the date he reported the incident, the investigative report states that Smart reported the incident on September 9, 2016. USCA11 Case: 22-11738 Document: 56-1 Date Filed: 02/16/2024 Page: 16 of 4522

- 11738 A BUDU , J., Dissenting 3
who was present during th e incident. Malone reported the incidentto the Alabama Department of Corrections (“ADOC”) Investigations and Intelligence Division (“I&I”), which is responsible for, among other things, “[e]nsuring that all allegations of sexual abuse and harassment are thoroughly investigated,” “[r]eferring violations of law to the district attorney for prosecution,” “[r]eporting statistical data for PREA[

- ]related incidents,” and informing theperson who reported the assault of the outcome of the investigation. See Ala . Dep’t of Corr. Admin. Reg. 454, § IV(C).
The ADOC assigned I&I Investigator George Bynum to the

matter. The record shows that Bynum interviewed Smart, England, and the t hree other witnesses Smart identified

. When interviewed, Smart reiterated the sa me facts asserted in his grievance, and England maintained that the pat down was just him “doing his job and not for sexual gratification.” One of the witnesses, Franky Johnson, stated that he was standing at his cell door window during the September 6 se arch and observed England pull on Smart’s “private part[s]” twice. The second witness, Timothy Gayle, was housed in a cell across from Smart’s and said that he saw England reach around Smart and massage Smart’s penis . He also heard Smart yell out in obje ction. About two months later, Bynum interviewed Lieutenant Russell Jones who was present as well during the search. Jones described Smart as “ belligerent ” and “ loud, ” but eventually co mpliant

. He acknowledged that England physically touch ed “Smart’s waistband, groin, and buttock area.” Six months after the incident, USCA11 Case: 22-11738 Document: 56-1 Date Filed: 02/16/2024 Page: 17 of 454 A BUDU , J., Dissenting 22

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Bynum interviewed Smart’s third identified witness, Officer Cameron Smith

— who was “three to four” feet away from Smart and England
, and observed Smart exit the cell only in his boxers . Smith stated England conducted a search of Smart’s “person and cell.”On March 6, 2017, Bynum completed his investigative report and found that Smart’s grievance against England for sexual assault was “ [u] nfounded. ” He summarily concluded that England “properly patted down inmate Smart over the outside of his boxershorts, following Standard Operating Procedure # 110 for performing a Shakedown/Pat Search or Frisk.” Although the form provided a space for f urther written comments, Bynum did not provide any. For example, Bynum did not write an assessment of why Smart, Johnson, and Gayle lacked credibility; he did not explainwhy he believed England’s version of events; and he did not include any notes remote ly suggesting that Smart fabricated a story

. Nor did he note that Johnson and Gayle somehow conspired with Smart to make a false claim against England

— a risky action to take given the associated punitive consequences of doing so. Two days after Byn um finalized his report, England charged Smart with “lying” about the sexual abuse allegation by issuing him

a document titled “Disciplinary Report

. ” Under a section titled,“Circumstances of Violation,” England wrote: “You inmate Germaine Smart B/M 19312 7 made an allegation against Sergeant Ronald England on 09/09/2016. Further [i]nvestigation by I & I Investigator George Bynum completed . . . on 03/06/2017. USCA11 Case: 22-11738 Document: 56-1 Date Filed: 02/16/2024 Page: 18 of 4522

- 11738 A BUDU , J., Dissenting 5
Disposition [s]howed this case ‘Unfounded and Closed.’ Therefore, you are being charged for Lyi ng.”Smart denied England’s assertion that he lied about the incident. Baker conducted a hearing on the charge during which Smart again maintained that everything in his grievance was true. In addition to Gayle and Johnson, who submitted both oral and w ritten testimony reiterating that they had seen England “ grab ” Smart’s penis, Smart called Officer Smith as a witness. Officer Smith testified that he heard Smart burst something out about “England grabbing and fondling with [Smart’s] penis.” England, wh o requested St. Clair punish Smart by charging him with lying, did not deny Smart’s allegation at all. In fact , England’s testimony only consisted of three undisputed facts: “On September 9, 2016, I Sergeant Ronald England conducted a pat search of inmat e Germaine Smart b/193127 C

- 5 cell. After the search, inmate Smart alleged that I Sgt. England grabbed his genitals inappropriately. I&I conducted an investigation into the incident and found that the allegations

were u nfounded.” England did not present any other evidence, and he failed to challenge the credibility of Smart’s two witnesses who both saw England sexually abusing Smart. At the conclusion of the hearing, Baker made a single factual finding: “Smart[’s] allegation against Sgt. England is u nfou nded.” As opposed to the seven months it took the prison to investigate and resolve Smart’s grievance regarding sexual abuse, England’sdisciplinary action against Smart was received, reviewed, investigated, and resolved within five days of Bynum’s report . There is USCA11 Case: 22-11738 Document: 56-1 Date Filed: 02/16/2024 Page: 19 of 456 A BUDU , J., Dissenting 22

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no indication in the record that Baker ever read Bynum’s report, yet Baker credited it and “believe[d]” England’s testimony

. Malone

— who had ordered the search in the first place

— adopted Baker’s determination that Smart had lied . He placed Smar t in disciplinary isolation for twenty

- one days, stripped him of access to the canteen and telephone for thirty days, and denied him visitation privileges for thirty days. Proceeding pro se , Smart filed a sworn, verified complaint on March 21, 2019, alleging that England sexually assaulted him in violation of his Eighth Amendment rights, and that prison officials unlawfully retaliated against him for filing a grievance in violation of his First Amendment rights. 2 Smart subsequently requested
, and the court granted
, leave to add two additional defendants to his complaint, Malone and Baker. England, Malone, and Baker filed Special Reports that included their sworn statements, which were construed as Defendants’ motion for summary judgment. Ultimat ely, the district court granted Defendants summary judgment, finding that they were entitled to qualified immunity.

2 The magistrate judge ruled that Sma rt’s Eighth Amendment claim was time

barred. Smart did not contest that ruling below and does not raise it on appeal. Therefore, the only issue before us is whether Defendants violated Smart’s First Amendment rights by retaliating against him for filing a grievance accusing England of sexual assault. USCA11 Case: 22-11738 Document: 56-1 Date Filed: 02/16/2024 Page: 20 of 4522

- 11738 A BUDU , J., Dissenting 7

II. PREA AND ALABAMA’S REGULATIONS
Smart’s claim for sexual assault and retaliation echoes that of countless others in the American cri minal legal system. Sexualabuse in prison has long terrorized those under correctional control. Indeed, it has been called “America’s most ‘open’ secret.” See Chandra Bozelko, Why We Let Prison Rape Go On
, N .Y. T IMES (April 17, 2015), https://perma.cc/D X2S

- S7NJ (“ According to the Bureauof Justice Statistics, around 80,000 women and men a year are sexually abused in American correctional facilities. That number isalmost certainly subject to underreporting, through shame or a victim’s fear of retaliatio n. ”).To tackle the issue of rampant sexual abuse in jails and prisons, Congress enacted PREA in 2003. See 34 U.S.C. §§ 30301

– 30309. Congress found that “[m]embers of the public and government officials [were] largely unaware of the epidemic character of prison rape and the day

- to

- day horror experienced by victimized inmates.” 34 U.S.C. § 30301(12). It also found that, by conservative estimates, “at least 13 percent of the inmates in the United States ha[d] been sexually assaulted in prison,” id

. § 30 301(2), and that “[p]rison rape often [went] unreported” with “inmate victims oftenreceiv[ing] inadequate treatment for the severe physical and psychological effects of sexual assault

— if they receive[d] treatment at all,” id

. § 30301(6). At the time it e nacted PREA, Congress found that “[t]he total number of inmates who [had] been sexually assaulted in the past 20 years likely exceeds 1,000,000.” Id. § 30301(2).
PREA ’s purpose was to establish a “zero

- tolerance standard for the incidence of prison rape” in the United States, id. § 30302(1), and “to USCA11 Case: 22-11738 Document: 56-1 Date Filed: 02/16/2024 Page: 21 of 458 A BUDU , J., Dissenting 22

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develop and implement national standards for the detection, prevention, reduction, and punishment of prison rape,” id . § 30302(3). Rape, as defined by PREA and relevant here, includes “ the sexual fondling of a person forcibly or against that person ’ s will.” Id

. § 30309(9)(A). To help accomplish the statute’s goals, PREA mandated the issuance of national standards, including guidanc e on how to address sexual acts by prison staff members against people under their correctional control

. See id . § 30306 (a),(d); 28 C.F.R. §§ 115.5

- 115.501. U nfortunately, it took the United States Department of Justice (“DOJ”) almost ten years to issue th o se national standards

. S ee 28 C.F.R. §§ 115.5

- 115.501. The standards expound on the definitions of rape in PREA and specifically define terms like “sexual abuse” and “sexual harassment.” For example, “ s exual abuse
, ” includes “ [a] ny [] intentional co ntact, either directly or through the clothing, of or with the genitalia, anus, groin, breast, inner thigh, or the buttocks, that is unrelated to official duties . . . .” 28 C.F.R. 115.6(5). The standards also identify ways prisons can respond to and inv estigate allegations of sexual abuse by guards or other inmates against incarcerated individuals, and they also outline procedures prisons must follow to protect individuals from retaliation when reporting abuse. See generally id . §§ 115.5

- 115.501; 28 C.F .R. §§ 115.51(a), 115.67. Despite these guidelines, incidents of sexual abuse in our nation’s jails and prisons are likely much higher than what is reported given that less than half of the victims of sexual abuse report the abuse themselves. See, e.g.
, U.S. D EP ’ T

. OF J UST

. , B UREAU OF J UST

. S TAT

. , Substantiated Incidents of Sexual Victimization USCA11 Case: 22-11738 Document: 56-1 Date Filed: 02/16/2024 Page: 22 of 4522

- 11738 A BUDU , J., Dissenting 9
Reported by Adult Correctional Authorities , 2016

- 2018 10 (Jan. 2023)
, https: //perma.cc/2MEV

- JZW6 (noting that more than half of the incidents of staff

- on

- inmate sexual violence nationwide were reported by someone other than the victim). The underreporting is likely even more prevalent among men. See Colette Marcellin and Evelyn F. McCoy, U RB

. I NST

. , Preventing and Addressing Sexual Violence in Correctional Facilities : Research on the Prison Rape Elimination Act 10 (2021), https://perma.cc/9QYZ

- L953

.Every single detention facility in the United States is required to comply with t hese standards; otherwise, they risk losing certain federal funding. See 34 U.S.C. § 30306(e)(2)

. ADOC’s Administrative R egulation 454 (“AR 454”) represents ADOC’s effort

to implement , and therefore, advance PREA’s goal of ensuring that institutional facilities are free from sexual violence. Its definitionof “sexual abuse,” like that of the national regulations, covers conduct by a correctional officer and includes “ intentional conta ct, either directly or through the clothing, of or with the genitalia

. . . that is unrelated to official duties or where the staff member

. . . has the intent to abuse, arouse, or gratify sexual desire .” Ala. Dep’t of Corr. Admin. Reg. 454, § III ( L ).

T o ensure those who report sexual abuse are not retaliated against, AR 454 § V(H)(2)(c) specifically forbids officials from “issu[ing] a disciplinary report for lying based solely on the fact that ” an inmate’s sexual abuse “ allegations were unfounded.” Ala

. USCA11 Case: 22-11738 Document: 56-1 Date Filed: 02/16/2024 Page: 23 of 4510 A BUDU , J., Dissenting 22

- 11738
Dep’t of Corr. Admin. Reg. 454, § V(H)(2)(c). 3 Individuals in custody, however, are not given carte blanche to make baseless sexual abuse accusations fueled by some ulterior motive. Section V(H)(2)(b), therefore, allows a correctional facility to take “disciplinary action” when an “ I&I Investigator determines that an inmate made a false report of sexual abuse or harassment. ” Id

. § V(H)(2)( b ).AR 454 has not had its intended effect. Sexual abuse in prisons and jails remains a persistent problem in A labama. For example, in 2014, the DOJ investigated the Julia Tutwiler Prison for Women and found the prison had a “history of unabated staff

- on

prisoner sexual abuse and harassment” which was “grossly

3 Notably, § V(H)(2)(c) uses the word “issue” before disciplinary report as opposed to “impose” or “serve.” “[A] regulation should be construed to give effect to the natural and plain meaning of its words.” Ala. Air Pollution Control Comm’n v. Republic St eel Corp ., 646 F.2d 210, 213 (5th Cir. 1981). The word “issue” means “to send out, put into circulation, distribute or publish.” Griswold v. United States , 59 F.3d 1571, 1580 (11th Cir. 1995) (citing The Random House Dictionary of the English Language 1015 (2d ed. 1987)). The word “impose”

— in the context of a punishment

— means “to make, frame, or apply . . . as compulsory, obligatory or enforceable.” Impose, Merriam

- Webster’s Unabridged Dictionary
, https://perma.cc/7P4A

- BPAX (last visited February 7, 2 024). While a document such as a disciplinary report may be issued, stating one may be “imposed” does not make much sense. Section V(H)(2)(c) therefore clearly and accurately states that a disciplinary report shall not be “issued.” It also makes no dist inction between a “preliminary” disciplinary report or a “final”one. If “issuing a disciplinary report” was supposed to mean “issuing a preliminary disciplinary report,” the text would say so. It does not. USCA11 Case: 22-11738 Document: 56-1 Date Filed: 02/16/2024 Page: 24 of 4522

- 11738 A BUDU , J., Dissenting 11
underreported,” in part, due to “a heightened fear of retaliation[]and an inadequate investigative process.” Letter from Jocelyn Samuels, Acting Assistant Att’y Gen., U.S. Dep’t of Just. , to Robert Bentley, Governor, State of Ala. (J an. 17 , 201 4 ), https://perma.cc/VE3D

- Z9LB (noting prison staff have “raped
, sodomized, fondled, and exposed themselves to prisoners. They have coerced prisoners to engage in oral sex. Staff engage [d] in voyeurism, forcing women to disrobe and watch [ed] them while they use the shower and use the toilet. ”). Similarly, in 2020, an Alabama deputy sheriff arrested a woman for a traffic stop and forced her toperform oral sex on him against her will while she was in his custody. Press Release, U.S. D EP ’ T OF J UST

. , Former Alabama Deputy Sheriff Sentenced for Sexually Assaultin g a Woman in His Custody (Aug. 25, 2023), https://perma.cc/65NR

- KG88

. The deputy was prosecuted in federal court for the sexual assault and sentenced to twelve and a half years in prison. Id

. Continued reports of sexual abuse and violence in Alab ama required the DOJ to step in and investigate whether the ADOC was protecting its prisoners from physical and sexual violence within its facilities, including St. Clair. U.S. D EP ’ T OF J UST

. C IV

. R TS

. D IV ., Investigation of Alabama’s State Prisons for Me n, at 1 (Apr. 2, 2019), https://perma.cc/EY9R

- TLL3

. Its investigation into sexual abuse by corrections officers was ongoing at the time of publication, id

. at 1 n. 2 , but the DOJ report documented an overall “pattern of undeterred systemic sexual abuse in Alabama prisons,” id . at 35. The DOJ also found that the ADOC’s investigations into sexual abuse were “incomplete” and “inadequate.” Id . at 41. USCA11 Case: 22-11738 Document: 56-1 Date Filed: 02/16/2024 Page: 25 of 4512 A BUDU , J., Dissenting 22

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A review of the ADOC’s Survey of Sexual Victimization
D ata corroborates the DOJ’s finding. The ADOC’s data reveal that its own investigations almost never sustain complaints of sexual abuse. For example, i n its Survey of Sexual Victimization data for
20 15 , the ADOC reported substantiating only three out of sixt y

three allegations of “ staff sexual misconduct ” 4 and none of the twenty

- four reports of “ staff sexual harassment.” 5 ADOC, Survey of Sexual Victimization 4

- 5 (2015)
, https://perma.cc/3EWX

- WTGC

. Similarly, in 2017, the ADOC reported substantiating none out of sixty

- eight allegations of “staff sexual misconduct” and none of the thirty

- five reports of “staff sexual harassment.” ADOC, Survey of Sexual Victimization 4

- 5 (2017), https://perma.cc/GT7L

- 3RR2. The same pattern continued in the years that follo wed. See, e.g.
, ADOC
, Survey of Sexual Victimization 4

- 5 (2018), https://perma.cc/LG9Q

- 4XW6 (substantiating one out of twenty

three reports of staff sexual misconduct and zero out of seven reports of staff sexual harassment); ADOC, Survey of Sexual Victimization 4

- 5 (2019), https://perma.cc/A25C

- 5YXW (substantiating one out of sixty

- three reports of staff sexual misconduct and zero out of

4 “Staff sexual misconduct” includes “[i]nte ntional touching, either directly orthrough the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks that is unrelated to official duties or with the intent to abuse, arouse, or gratify sexual desire” toward an inmate by an employee. ADOC, Survey of Sexual Victimization 4 (2015), https://perma.cc/3EWX

- WTGC.

5 “Staff sexual harassment” includes “[r]epeated verbal statements, comments or gestures of a sexual nature to an inmate by an employee[.]” Id

. USCA11 Case: 22-11738 Document: 56-1 Date Filed: 02/16/2024 Page: 26 of 4522

- 11738 A BUDU , J., Dissenting 13
thirty

- two reports of staff sexual harassment). It is against this back drop that Smart filed his grievance.

III. STANDARD OF REVIEW We review a district court’s grant of summary judgment de

novo , Christmas v. Harris County , 51 F.4th 1348, 1353 (11th Cir. 2022), crediting the specific facts pled in Smart’s sworn complaint and draw ing all reasonable inferences in the l ight most favorable to him
, Sconiers v. Lockhart , 946 F.3d 1256, 1262 (11th Cir. 2020)

.“Summary judgment is warranted where the evidence in the record presents no genuine issue of material fact and compels judgment as a matter of law in favor of the movi ng party.” Marbury v. Warden , 936 F.3d 1227, 1232 (11th Cir. 201 9) (quoting Caldwell v. Warden , 748 F.3d 1090, 1098 (11th Cir. 2014) (internal quotation marks omitted).

IV. DISCUSSION On appeal, Smart challenges the district court’s decision to grant summary judgment in Defendants’ favor based on qualified immunity. First, he argues that Defendants acted outside of their discretionary authority when they issued him a disciplinary repor t for lying about his alleged sexual assault. Second, he contends that even if Defendants’ conduct involved discretionary functions, they violated his clearly established right to file a grievance free from retaliation. USCA11 Case: 22-11738 Document: 56-1 Date Filed: 02/16/2024 Page: 27 of 4514 A BUDU , J., Dissenting 22

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A. Defendants Acted Outside the Sco pe of Their Discretionary Authority. To invoke the defense of qualified of immunity, Defendantsinitially bear the burden of establishing that they were “(a) performing a legitimate job

- related function (that is, pursuing a job

related goal), (b) through means that were within [their] power to utilize.” Holloman ex rel. Holloman v. Harland , 370 F.3d 1252, 1265 (11th Cir. 2004). To answer the first part of that test, our precedent requires that we ask, in a more general way, what the job

- related function entails. See, e.g., id . at 1267 (reasoning that defendant teacher’sclassroom behavior while disciplining students was part of her discretionary duty even if the challenged behavior might have been unconstitutional); Sims v. Metro. Dade C ou nty , 972 F.2d 1230, 1236 (11th Cir. 1992) (explaining that question of whether defendant county could discipline employees for their off

- duty conduct was distinct from whether off

- duty conduct for which employee was disciplined was constitutionally protected); Rich v. D ollar , 841 F.2d 1558, 1564 (11th Cir. 1988) (distinguishing between the issue of whether state attorney’s investigator had discretionary authority to prepare and submit probable cause affidavits and whether actual probable cause existed for the affidavit).Temporarily setting aside the unconstitutional nature of Defendants’ behavior against Smart, disciplining inmates for violating prison regulations is unquestionably part of a correctional officer’s job description. Defendants meet the first part of the discretionary USCA11 Case: 22-11738 Document: 56-1 Date Filed: 02/16/2024 Page: 28 of 4522

- 11738 A BUDU , J., Dissenting 15
function test because disciplining inmates is something that, “ but for the alleged constitutional infirmity, would have fallen with[in] [Defendants’] legitimate job description.” See Holloman , 370 F.3d a t
1266

. The problem for England, Malone, and Baker, however, is that a job

- related function

— in this case, England’s disciplinary report, Baker’s investigation, and Malone’s punishment

— cannot be exercised for an illegal purpose or through illegal means. Because AR 454 and PREA ’s national standards prohibit the very conduct inwhich Defendants engaged in response to Smart’s grievance, Defendants’ decision to charge, investigate, and punish Smart was not for a legitimate, lawful reason. Nor was it done thr ough legitimate, lawful means.AR 454 states that a person who is in custody and has reported sexual abuse “ shall not be issued a disciplinary report for lying based solely on the fact that their allegations were unfounded.” Ala. Dep’t of Corr. Admin. Reg. 454, § V(H)(2)(c) (emphasis added). Yet, England issued Smart “a disciplinary report for lying based solely on the fact that [Smart’s] allegations were unfounded.” See id

. Any suggestion that a subsequent hearing , where identical evidence fr om the I&I investigation was introduced , somehow converted Defendants’ conduct into lawful behavior is simply not plausible. Issuing an unlawful disciplinary report, which resulted in an unlawful hearing, that concluded with an unlawful punishment

were ac ts outside of England, Malone, and Baker’s discretionary authority. See Holloman , 370 F.2d at 1283 (ruling teacher acted USCA11 Case: 22-11738 Document: 56-1 Date Filed: 02/16/2024 Page: 29 of 4516 A BUDU , J., Dissenting 22

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outside of her discretionary authority when she pursued the job

related goal of “fostering her students’ character education” through classroom prayer because prayer was not a means available to teachers to further their pedagogical duties); see also Spencer v. Benison , 5 F.4th 1222, 1231 (11th Cir. 2021) (finding that defendant sheriff was acting within “ means that were within his power to utilize” when he verbally ordered the plaintiff to remove cones and vehicles, and the plaintiff had not argued verbal orders were beyond his power to use); Sims , 972 F.2d at 1236 (noting that defendant employers acted within the scope of their discreti onary authority because “[t]here [was] no contention that the three

- day suspension imposed upon the plaintiff employee exceeded the scope of the [their] authority to administer disciplinary measures”). For these reasons, England, Malone, and Baker are not entitled to qualified immunity.

B. Defendants’ Retaliatory Behavior Violated Smart’s First Amendment Rights , and His First Amendment Rights Were Clearly Established

. Because Defendants were not acting within the scope of their discretionary authority, the q ualified immunity analysis could end there. However, e ven assuming Defendants had overcome the discretionary authority bar, their actions against Smart for filing a grievance were still retaliatory in nature, thus violating his First Amendment rights. Se e McDonough v. Garcia , 90 F.4th 1080, 1097 (11th Cir. 2024) (explaining that if an official was acting within his discretionary authority, a plaintiff may still overcome qualified immunity by establishing a violation of a clearly established right). In USCA11 Case: 22-11738 Document: 56-1 Date Filed: 02/16/2024 Page: 30 of 4522

- 11738 A BUDU , J., Dissenting 17
this case, the retaliation was England’s disciplinary report, Baker’s disciplinary proceedings , and Malone’s decision to punish him by plac in g him in isolation for thirty days and restrict his contact with the outside world. See Boxer X v. Harris , 437 F.3d 1107, 1112 (11th Cir. 2006), abrogated in part on other grounds by Wilkins v. Gaddy , 559 U.S. 34 (2010) (per curiam) (holding that plaintif f’s claim “that he was punished for complaining through the established grievance system about his treatment by [a prison guard]” was sufficient to

state a First Amendment retaliation claim).The law is clear that public officials are not entitled to qualified immunity “when they exercise power irresponsibly,” even when engaged in a discretionary function. Pearson v. Callahan , 555 U.S. 223, 231 (2009). Defendants, as prison officials, enjoy some discretion when deciding to punish inmates, but that punish ment cannot be in response to an incarcerated person complaining about his prison conditions, especially given the heightened protections that PREA and AR 454 guarantee.

i. Defendants’ Acts Were Retaliatory in Nature. When an incarcerated person files a griev ance to complainabout the conditions of his confinement, the First Amendment forbids prison officials from punishing that person based solely on that grievance. Douglas v. Yates , 535 F.3d 1316, 1321 (11th Cir. 2008) ( “ We have explained that ‘ First Amendment rights to free speechand to petition the government for a redress of grievances are violated when a prisoner is punished for filing a grievance concerning the conditions of his imprisonment. ’” ( quoting Boxer X , 437 F.3d at USCA11 Case: 22-11738 Document: 56-1 Date Filed: 02/16/2024 Page: 31 of 4518 A BUDU , J., Dissenting 22

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1112 )). Moreover, Congress, through PREA ’s national standards, provided even greater protection for those whose grievances are related to alleged instances of sexual assault. See 28 C.F.R. §§ 115.51(a), 115.67

. Smart’s First Amendment claim is a retaliation claim premised on D efendants’ acts after he accused England of fondling his penis and scrotum in an inappropriate way. For Smart to prevail

on this claim , he must satisfy three elements. First, he must show he had a constitutional right to file his grievance. Bennett v. Hendrix
,423 F.3d 1247, 1250 (11th Cir. 2005). Second, he must show Defendants’ disciplinary report, investigation, and punishment would likely deter “a person of ordinary firmness” from filing future
PREA- related grievances. See i d

. at 1251 ( “An objective standardfor [the ‘ordinary firmness’ test] provides notice to government officials of when their retaliatory actions violate a plaintiff’s First Amendment rights.” ). Third, he must show Defendants’ actions were directly caused or motivated by Smart filing his grievance. See id

. at 1250. The evidence in the record supports a finding that Smart has satisfied all three prongs.First, Smart’s protected activity was the filing of his grievance which, after a protracted investigation, was determined to be unfounded. See Smith v. Mosley , 532 F.3d 1270, 1276 (11th Cir. 2008) (“It is an established principle of constitutional law that an inmateis considered to be exercising his First Amendment right of freedom of speech when he complains to the prison’s administrators about the conditions of his confinement.”) ; Boxer X , 437 F.3d at USCA11 Case: 22-11738 Document: 56-1 Date Filed: 02/16/2024 Page: 32 of 4522

- 11738 A BUDU , J., Dissenting 19

1112 ( “ First Amendment rights to free speech and to petition thegovernment for a redress of grievances are violated when a prisoner is punished for filing a grievance concerning the conditions of his imprisonment. ”). Second, Defendants’ response to Smart’s grievance was to issue him a disciplinary report, institute disciplinary proceedings to investigate him for lying, and then punish h im by placing him in disciplinary segregation and stripping away his canteen, visiting, and telephone privileges for thirty days . Smart, and any other person of “ordinary firmness” who is incarcerated and who experienced any form of sexual misconduct, esp ecially by guards, would be dissuaded from filing a similar grievance. See Mosley
, 532 F.3d at 127 5 & n.10, 1277 ( finding that the plaintiff demonstrated the second element of a retaliation claim when he was sentenced to, among other things, forty

- five da ys of disciplinary segregation ) ; Wildberger v. Bracknell , 869 F.2d 1467, 1468 (11th Cir. 1989) (per curiam) (finding retaliation claim where plaintiff alleged he was placed in disciplinary segregation as punishment). Finally, Smart can satisfy the causa tion element as well

— England charged Smart with lying based on Smart’s “unfounded” grievance. The cascading consequences for Smart all derived from him speaking out against sexual assault. See Moton v. Cowart , 631 F.3d 1337, 1341 (11th Cir. 2011) (findin g that the record, on summary judgment, supported a causal connection between the plaintiff’s grievance and the discipline the correctional officer imposed). USCA11 Case: 22-11738 Document: 56-1 Date Filed: 02/16/2024 Page: 33 of 4520 A BUDU , J., Dissenting 22

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Defendants also argue that O’Bryant v. Fi n ch , 637 F.3d 1207 (11th Cir. 2011), forecloses Smart’ s First Amendment claim because his punishment was based on an actual finding that he violated a prison regulation by lying about the sexual assault. However, O’Bryant actually buttresses

— rather than undermines

— Smart’s retaliation claim and strengthens Sm art’s causation argument.

In O’Bryant v. Fi n ch
, the incarcerated plaintiff O’Bryant filed a First Amendment retaliation claim under 42 U.S.C. § 1983 against two prison guards who had issued him disciplinary reports after he filed grievances claiming that he received an inadequate consultation regarding prison rules. Id . at 1209. Weeks after O’Bryant filed his consultation

- related grievances, a guard issued him a disciplinary report for “disrespect” after he called the guard “ignorant” and “fucking retar ded.” Id . at 1210. Three days later, another guard issued O’Bryant a second disciplinary report for “disrespect” when he refused to back away from his cell door as directed during an emergency happening in another cell. Id . at 1211. Notably, the actual basis for the two disciplinary reports, other than O’Bryant’s allegation that they were a form of retaliation, had nothing to do with the specific subject matter of O’Bryant’s grievances. See id. at 1210,1211. The panel affirmed summary judgment in the defendants’ favor because there was sufficient evidence to support the disciplinary panel’s finding that O’Bryant was disrespectful and failedto obey the guards’ commands and, thus, had violated prison regulations. See id . at 1215. In reaching this conc lusion, the panel held that, “an inmate cannot state a claim of retaliation for a disciplinary USCA11 Case: 22-11738 Document: 56-1 Date Filed: 02/16/2024 Page: 34 of 4522

- 11738 A BUDU , J., Dissenting 21
charge involving a prison rule infraction when the inmate was found guilty of the actual behavior underlying that charge.” See id

. at 1215. The panel also affi rmed summary judgment becauseO’Bryant had failed to show “a causal connection between his earlier grievances and the disciplinary harm” he experienced. Id

. With respect to the causal connection issue in O’Bryant , the panel relied on Smith v. Mosley and Moton v. Cowart
, which both involved inmates who claimed that prison officials had retailed against them for filing grievances. The plaintiff in Mosley could not satisfy the causal connection element because the d iscipline he received was based on comments that he made in a letter to the DOJ that included false statements and were , thus, unprotected speech. 532 F.3d at 1276. In setting forth the defendants’ burden of proof as it related to causation , the Mosley c ourt held that, “if the defendant can show that he would have taken the same action in the absence of the protected activity, he is entitled to prevail on his motion for summary judgment.” Id

. at 1278 (quoting Thaddeus

- X v. Blatter , 175 F.3d 378, 399 ( 6th Cir. 1999 ) )

. Because the correctional officers would have proceeded as they did despite the grievances the plaintiff had lodged, the plaintiff could not meet the causational element. Id . at 1279. Here, Defendants have not shown, nor could they, that th ey would have taken the same action against Smart in the absence of his protected activity because the very purpose of the punishment was the protected activity.

In Moto n , however, we reversed the district court’s grant of summary judgment, ruli ng that there was a genuine issue of USCA11 Case: 22-11738 Document: 56-1 Date Filed: 02/16/2024 Page: 35 of 4522 A BUDU , J., Dissenting 22

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material fact as to the motivation behind the prison’s decision to discipline the plaintiff

. 631 F.3d at 1342

- 43. In that case, the prison guard issued two disciplinary reports immediately after receiving Moton’s grie vance on the grounds that the language in the grievance

— which was written in all capital letters

— was disrespectful and Moton’s statement that he was going to contact his attorney in response to the first grievance was threatening. Id . at 1340

- 41 . In finding that no prison rule was violated, this Court specifically held that an inmate’s statement that he plans to call his attorney does
not constitute a punishable “ ‘ spoken threat, ’ ” and that “using large and upper case letters in a grievance ,” in and of itself, does not violate the prison rule prohibiting disrespect. Id . at 1342 . Thus, because no prison rule had been violated, Moton had created a question of fact as to whether the disciplinary reports were actually based on the filing of his grie vance. Id . at 1342

- 43. Here too, asfurther explained below, the lack of evidence against Smart demonstrates no prison rule was violated. O’Bryant also emphasized the importance of due process protections for inmates going through a disciplinary hearing process. Specifically, there must be “some evidence in the record ” to support the disciplinary panel’s findings, i.e. “some basis in fact.” O’Bryant , 637 F.3d at 1214 (quoting Superintendent v. Hill , 472 U.S. 445, 4 5 5

- 57 (1985) (ruling that a record can not be “so devoid of evidence that the findings of the disciplinary board were without support or otherwise arbitrary” ) ). USCA11 Case: 22-11738 Document: 56-1 Date Filed: 02/16/2024 Page: 36 of 4522

- 11738 A BUDU , J., Dissenting 23

In Smart’s case, there was no evidence to support England’scharge and the ultimate finding that Smart lied about England sexually a ssaulting him; even Defendants’ counsel during oral argument admitted that the prison’s written findings were “sparse” at best. The only evidence upon which Baker relied in finding thatSmart lied was (1) England’s sworn testimony and (2) Bynum’s conclusi on that Smart’s grievance was “unfounded

. ” There was absolutely nothing in Bynum ’s I&I report or Baker’s disciplinary report explaining why they did not credit Smart’s testimony ; why they did not believe the testimony of Franky Johnson or Timothy Gayle,

t he two inmates who had a direct line of vision to the incident and stated under oath that they saw England grab Smart’s penis ; or why they did not credit correctional officer Smith who corroborated hearing Smart contemporaneously scream out when England fo ndled him . While some deference is due to Baker and Bynum, it is
very troubling and surprising that neither referenced any evidence supporting Smart’s version of events

. Moreover, England conceded that he placed his hands on Smart’s penis and scrotum , a nd the rest of the evidence introducedby Smart at the disciplinary hearing was unchallenged and unimpeached. England never objected to Smith’s testimony that Smart yelled out as the search was happening, and he did not present any evidence questioning Jo hnson and Gayle’s line of sight. Thus, while Bynum conclu ded that England’s genital search might not have amounted to sexual assault, there is absolutely nothing in the record to support a finding that Smart lied about it. Because an “unfounded” determin ation under AR 454 could not serve as the USCA11 Case: 22-11738 Document: 56-1 Date Filed: 02/16/2024 Page: 37 of 4524 A BUDU , J., Dissenting 22

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basis for issuing a disciplinary report against Smart for lying, it de finitely could not support a conviction for lying or the punishment that Smart received based on England’s accusation. See O’Bryant
, 637 F.3d at 1215. Finally, the O’Bryant court ’s deference to disciplinary findings does not apply here. O’Bryant explained that a court ’ s failureto defer to such findings “would render the prison disciplinary system impotent by inviting prisoners to petition the courts for a fullretrial each time they are found guilty of an actual disciplinary infraction after having filed a grievance.” O’Bryant , 637 F.3d at 1216 (emphasis omitted). However, t he correctional officers in O’Bryant were not prohibited from charging O’Bryant with disrespecting a guard because there was some evidence in the record to support a finding that O’Bryant uttered those disrespectful statements. Smart’s circumstances are profoundly different. The deference rationale does not a pply when the disciplinary process should have never been utilized in the first place. Indeed, AR 454 , § V(H)(2)(c)

was specifically promulgated so that officials who flout prison regulations cannot punish or otherwise retaliate against inmates who report sexual abuse , even when those complaints are later determined to be unfounded

. In contravention of AR 454, England’s disciplinary report was a direct response to Smart’s grievance and there is nothing in the record to suggest that, absent Smart’s formal grievance, England would have charged Smart with lying. See Mosley , 532 F.3d at 1278 (emphasizing that the defendant bears the burden of proving “ he would have taken the same action in the absence of the protected activity ” (quoting Thaddeus

- X , 175 F.3d a t USCA11 Case: 22-11738 Document: 56-1 Date Filed: 02/16/2024 Page: 38 of 4522

- 11738 A BUDU , J., Dissenting 25

399) ). T he findings from Baker’s subsequent disciplinary proceeding

— which did not entertain any new evidence

— cannot shield Defendants from Smart’s retaliation claim.

ii. Smart’s First Amendment Right was Clearly Established

. Under our precedent, a right can be clearly established in one of three ways: “(1) case law with indistinguishable facts, (2) a broad statement of principle within the Constitution, statute, or case law, or (3) conduct so egregious that a constitutional ri ght was clearly violated, even in the total absence of case law.” Crocker v. Beatty , 995 F.3d 1232, 1240 (11th Cir. 2021) (citing Lewis v. City of W. Palm Beach , 561 F.3d 1288, 1291

- 92 (11th Cir. 2009) (internal quotation marks omitted) ). “A right is ‘cl early established’ if controlling law gave the official ‘fair warning’ that his conduct violated that right.” Nelson v. Tompkins , 89 F.4th 1289 , 1299 (11th Cir. 2024) (citation and internal quotation marks omitted)

. Decades of Eleventh Circuit case law with materially similar facts provided Defendants fair notice that their conduct violated Smart’s First Amendment right to be free from retaliation for filing a grievance. In 1985, we decided Bridges v. Russell , 757 F.2d 1155 (11th Cir. 1985). In Bridges , we held as a matter of first impression that the plaintiff, an incarcerated person, had alleged a First Amendment violation by claiming that prison officials transferred him to another institution as punishment after he, among otheracts, filed a grievance concerning racial discrimination in work assignments. 757 F.2d at 1156

- 57. One year later we decided Wright USCA11 Case: 22-11738 Document: 56-1 Date Filed: 02/16/2024 Page: 39 of 4526 A BUDU , J., Dissenting 22

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v. Newsome , 795 F.2d 964 (11th Cir. 1986). In Newsome , we held that an incarcerated person had successfully alleged a First Amendment claim wh en he asserted prison officials retaliated against him by searching his cell and seizing his property for filing administrative grievances. 795 F.2d at 968. Several years later, in Wildberger , this Court

— relying on Bridges and Wright

— explained: “It seems clear that if appellant is able to establish that his discipline was the resultof his having filed a grievance concerning the conditions of his imprisonment, he will have raised a constitutional issue, under the authority of these cases.” 869 F.2d at 14 68.We have continued to decide materially similar cases establishing that Defendants’ conduct violated Smart’s First Amendment right to be free from retaliation. See Mosley , 532 F.3d at 1276 (explaining that the First Amendment right of freedom of spee ch to complain about conditions of confinement is well established);
Moton , 631 F.3d at 1343 ( “It is well established that a prison inmate retains those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate p enological objectives of the corrections system.” (internal quotation marks and citationomitted)). We have even done so in the context of an inmate reporting sexual abuse by a correctional officer. In Boxer X , for example, an incarcerated individual sued a correctional officer for punishing him after he complained about her forcing him to repeatedlyexpose himself to her and to perform sexual acts for her gratification. 437 F.3d at 1112. We reversed the dist rict court’s dismissal of the plaintiff’s claims because he had stated a claim for retaliation under the First Amendment. Id . These cases all demonstrate that USCA11 Case: 22-11738 Document: 56-1 Date Filed: 02/16/2024 Page: 40 of 4522

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the law clearly established the unconstitutionality of Defendants’ conduct. Defendants cannot benefit from the shield of qualified immunity by arguing the law was not clearly established. Bridges
, Wright , and several other cases also establish a broad, clearly established principle that governs the facts of Smart’s
situation. See Loftus v. Cla rk

- Moore , 690 F.3d 1200, 1204 (11th Cir2012) (explaining that a plaintiff may rely on a “broader, clearly established principle [that] should control the novel facts [of the] situation) (citation and internal quotation marks omitted)). These cases stand for the proposition that officers may not retaliate against inmates for filing grievances about the conditions of their confinement, and this rule applies with “obvious clarity” to the facts of this case. See id . at 1205; see also Hope v. Pelzer , 536 U.S. 730, 741 (2002) (a “constitutional rule already identified in the decisionallaw may apply with obvious clarity to the specific conduct in question”). We have previously invoked this constitutional principle to deny qualified immunity in a wide range of retaliation cases. In
Bennett , for example, we denied qualified immunity to sheriff’s deputies who intimidated, attempted to arrest, and engaged in oth er acts of harassment against private citizens for supporting a county referendum that proposed diminishing the power of the sheriff’s department. 423 F.3d at 1255

- 56. In rejecting the deputies’ qualified immunity defense, we explained that our precedent and Supreme Court precedent has “long held that state officials may not retaliate against private citizens because of the exercise of their USCA11 Case: 22-11738 Document: 56-1 Date Filed: 02/16/2024 Page: 41 of 4528 A BUDU , J., Dissenting 22

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First Amendment rights

. ” Id . at 1255. Therefore, this constitutional rule applied with “obvious clarity” to the s pecific facts of the case and defeated qualified immunity. Id . at 1255

- 56. This prohibition on retaliation based on protected First Amendment speech and conduct was invoked again in Bailey v. Wheeler , 843 F.3d 473 (11th Cir. 2016). In Bailey v. Whe eler , OfficerBailey of the Douglasville Police Department filed a written complaint reporting his colleagues and officers in the Douglas CountySheriff’s Office for racial profiling and other constitutional violations. 843 F.3d at 477. In response, the Douglasville Police Department fired him. Id . at 479. After he appealed his termination, a Major with the Douglas County Sheriff’s Office, Tommy Wheeler, put out an alert to law enforcement that permitted “all Douglas County law

- enforcement officers a re asonable basis for using force

— including deadly force

— against Bailey.” Id . at 482. In rejecting Wheeler’s qualified immunity defense, we relied on the “reasoning . . . and the broad principle” articulated in Bennett
, which put Wheeler on notice that his behavior would violate Bailey’s First Amendment rights. Id . at 484. Thus, the general proposition that correctional officers may not retaliate against prisoners for filing grievances has been well established in the Eleventh Circuit starting from 1985. See Bridges
, 757 F.2d at 1156; see also Wright , 795 F.2d at 968 (recognizing that retaliation for filing lawsuits and administrative grievances violates “the inmate’s First Amendment rights”) . Protection against retaliation for filing a grievance about s exual abuse at the hands of a USCA11 Case: 22-11738 Document: 56-1 Date Filed: 02/16/2024 Page: 42 of 4522

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correctional officer certainly falls directly within that general proposition and applies with obvious clarity to Smart’s case. PREA, its regulations, and AR 454 reinforce the obviousness of Defendants’ First Amendment viola tion. The PREA regulations, promulgated pursuant to federal statute, specifically provide for protection against retaliation. See, e.g. , 28 C.F.R. § 115.67(a) (“ The [prison or jail] shall establish a policy to protect all inmates and staff who report sex ual abuse or sexual harassment or cooperate with sexual abuse or sexual harassment investigations from retaliation by other inmates or staff . . . .”); id . § 115.67(b) (“The [prison or jail]

s hall employ multiple protection measures, such as housingchanges or transfers for inmate victims or abusers, removal of alleged staff or inmate abusers from contact with victims, and emotional support services for inmates or staff who fear retaliation for reporting sexual abuse or s ex ual harassment or for cooper ating with investigations. ”).If these federal standards were not enough to place Defendants on notice, AR 454 itself prohibits retaliation against inmates for reporting sexual abuse. See, e.g.
, AR 454 § V( K )( 1 ) (“ Retaliation in any form for the reporti ng of, or cooperation with, sexual abuse or harassment allegations is strictly prohibited .”); id . § V( K )( 2) (“The Warden and [Institutional PREA Compliance Manager] shallensure inmates and staff who report sexual abuse, sexual harassment, or cooperate wit h a sexual abuse investigation are protected from retaliation by other inmates or staff.”). Although prison regulations themselves do not constitute constitutional law, they USCA11 Case: 22-11738 Document: 56-1 Date Filed: 02/16/2024 Page: 43 of 4530 A BUDU , J., Dissenting 22

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certainly “undermine any claim by defendants that they were unaware of their lega l obligations” not to retaliate. See Al

-Amin v. Smith , 511 F.3d 1317, 1336 n.37 (11th Cir. 2008). Importantly, thisis not a case where Smart is arguing there is some obscure, unknown state regulation that prohibits Defendants’ conduct. This is

a case w here there is clear Eleventh Circuit precedent prohibitingretaliation based on filing a grievance, federal regulations that prohibit retaliation based on a report of sexual abuse, and a state regulation forbidding the same. Moreover, AR 454 was specifica lly promulgated to comply with PREA and PREA

- based national standards. Given these judicial authorities, statutory authorities, and regulatory authorities, the “salient question ,” of whether Defendants had fair warning that their conduct was unconstitution al
, can only be answered with a resounding “yes.” See Hope , 536 U.S.

at 7 31 (explaining that i n determining whether a right was clearly established, the “salient question . . . is whether the state of the law . . . gave [the officers] fair warning that [ t heir ] alleged treatment of [the plaintiff] was unconstitutional.” ).

V. CONCLUSION The power imbalance between incarcerated individuals and correctional officers is clear. Recognizing this very power dynamic , Congress acknowledged that “[p]rison rape often goes unreported,” 34 U.S.C. § 30301(6), because of the widespread fear of retaliation. Smart had nothing to gain by lying and everyt hing to lose by reporting England. Despite this risk, which manifested into reality, Smart chose to speak out and was punished for doing so. There can be no clearer, straightforward violation of the First USCA11 Case: 22-11738 Document: 56-1 Date Filed: 02/16/2024 Page: 44 of 4522

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Amendment right to file a grievance free from ret aliation than this

case. For these reasons, I respectfully dissent. USCA11 Case: 22-11738 Document: 56-1 Date Filed: 02/16/2024 Page: 45 of 45