[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

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2 Opinion of the Court 22-11738

____________________

Before WILLIAM PRYOR, Chief Judge, and ABUDU and ED CARNES, 

Circuit Judges.

WILLIAM PRYOR, 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 alleged that England sexually assaulted him 

during a pat-down search. After a prison investigator determined 

that Smart’s allegations of sexual assault were unfounded, England 

charged Smart with the disciplinary infraction of “Lying.” A disciplinary tribunal later found that Smart’s allegations were false and 

sanctioned him for lying. The district court granted summary judgment for the officials based on qualified immunity. 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 officers, including 

Sergeant Ronald England, 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.” Smart exited his cell in only boxer shorts. Within view of 

two other prison officers and two prisoners in adjacent cells, 

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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, requires “pressing one’s hands against and over the 

. . . clothed body” of the individual being searched. None 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 an administrative complaint of misconduct a few 

days later. The complaint alleged that, during the pat-down, 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 conducted 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 prisoners, and 

three other prison officers. During his interview, Smart reiterated 

his written account that England had “fondle[d]” his penis. Both 

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

“pulled on inmate Smart’s private part twice.” And the prisoner

who occupied the cell across from Smart recounted that Sergeant 

England had “massaged inmate Smart[’s] penis.” The prison officers, in contrast, denied seeing any misconduct. The two closest 

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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 Smart” and “follow[ed the prison’s] 

Standard Operating Procedure” for “performing a pat-down 

search.” The standardized report form provides only four options 

for case dispositions: “Substantiated,” “Unsubstantiated,” “Unfounded,” and “Cleared by Arrest.” Bynum 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 approval of Bynum’s report, England served 

Smart with a preliminary disciplinary report charging him with 

“Lying,” a medium-level disciplinary infraction. The Department 

regulations define “Lying” as “[g]iving false testimony or making a 

false 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 

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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 prisoners and a prison officer. 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 officer 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 Smart 

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 Smart, and “accept[ed] the finding of I & I investigator Bynum” that Smart’s allegations were unfounded. Baker 

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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 alleged 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 with the sworn testimony of all knowledgeable individuals, which would be treated as a motion for summary judgment. All three officials invoked qualified immunity.

Smart opposed the motion and argued that England’s “unlawful issuance” of the disciplinary report 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 gave England 

and Baker “no leeway or authority” to issue the disciplinary report.

The magistrate judge recommended granting the officials’ 

motion for summary judgment. He found that qualified immunity 

barred Smart’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 violating Department Regulation 454 could be unconstitutional retaliatory conduct.

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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.” FED. R. CIV. 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 any clearly established federal 

right. See Laskar v. Hurd, 972 F.3d 1278, 1284 (11th Cir. 2020). An

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). Officials who satisfy that burden are entitled to qualified 

immunity 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 District

of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018)) (internal quotation 

marks omitted). 

Smart makes two arguments for reversal. He argues that the

officials lacked the discretionary authority to violate prison administrative regulations. 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 eligible for qualified immunity, an official must prove 

that 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-related 

function at “a general level rather than in [a] specific application,”

while taking 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 proper scope of his job-related activities.” Id. at 1266–67.

The officials exercised discretionary authority. We have repeatedly explained that the “administration of discipline” is a jobfunction defined at the appropriate level of generality for the analysis of a public official’s discretionary authority. Id. (citation and 

internal quotation marks removed) (explaining that disciplining a 

student was a “legitimate prerogative[]” of a teacher’s job); see also 

Harbert Int’l Inc. v. James, 157 F.3d 1271, 1282–83 (11th Cir. 1998)

(concluding that public officials’ “discretionary duties included the 

administration of discipline”); Sims v. Metro. Dade County, 972 F.2d 

1230, 1236 (11th Cir. 1992) (same). Prison officials’ duties include 

disciplining prisoners for behavioral infractions. See Ala. Code § 14-

1-4(a) (providing that the Department shall determine the 

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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 

performed 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 “unlawful hearing” to adjudicate whether Smart

lied. Dissent at 15. 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, section V(H)(2)(b) of the 

regulation expressly allows such disciplinary actions. Id.

§ V(H)(2)(b) (“Disciplinary 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.”).

Regulation 454 instead provides heightened procedural protections for prisoners who have made sexual assault allegations: 

section 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). The 

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 

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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 words, section 

V(H)(2)(c) requires final sanctions to be based on more than “solely” 

on an investigative finding. Prison officers owe a prisoner process 

and 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 charges, 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 make 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—the investigative report form provides “unfounded” as the 

option most evidencing falsity, and there is no option for “false.”

So the officials did not violate Regulation 454 by charging Smart. 

Nor did the officers issue Smart a disciplinary report based 

“solely” on Bynum’s investigative finding that Smart’s allegations 

were “unfounded.” 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 

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their statements incorporated into the disciplinary report. As the 

basis for the guilty determination and sanctions, the hearing officer 

credited not only Bynum’s report, but also “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 contends that the officials retaliated against him in violation of his right to the freedom of speech. For Smart to establish 

a violation of his constitutional right, he had to prove that he engaged in protected speech, that officials retaliated against him, an 

adverse effect on his protected speech, and a causal relationship between the retaliation and the adverse effect. See Bennett v. Hendrix, 

423 F.3d 1247, 1250 (11th Cir. 2005). A prisoner may state a claim 

under the First Amendment when he alleges that he was “punished 

for 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 we have held that a prisoner’s violation 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, 1277

(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 

prison disciplinary charge when “the inmate was found guilty of 

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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 entire record, independent 

assessment 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 

an actual disciplinary violation is unprotected under the First 

Amendment—does not apply when the officials unlawfully initiated 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. The officials 

complied with prison regulations in issuing Smart’s disciplinary report, so there is no reason to depart from our precedents.

O’Bryant and Mosley control. The officials afforded Smart 

due process—a tribunal before which he testified and presented evidence—and found him guilty based on “some evidence.” See Hill, 

472 U.S. at 457. So whether Smart “actually committed the charged 

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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 for 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, Smart’s administrative 

complaint “included false statements and w[as], thus, unprotected 

speech.” Dissent at 21 (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 “state a retaliation 

claim against the prison employee who reported [his] infraction.” 

O’Bryant, 637 F.3d at 1215. The officials enjoy qualified immunity.

We agree with our dissenting colleague that reports of “rampant sexual abuse” and the high incidence of sexual assault allegations against prison officers are deeply troubling. Dissent at 7–13. 

But we cannot endorse an approach that allows 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 reported 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. Where Smart’s allegations

against 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. 

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14 Opinion of the Court 22-11738

IV. CONCLUSION

We AFFIRM the judgment for England, Malone, and Baker.

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22-11738 ABUDU, J., Dissenting 1

ABUDU, 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 determined 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 establish 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 district 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 search 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. England 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,

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2 ABUDU, J., Dissenting 22-11738

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

guards—turned around at England’s direction so that England 

could physically search him. According 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, who 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 scrotum 

was proper, or expressly denying that he did anything inappropriate, England just snickered and ordered Smart to step aside so he 

could search his cell. England left after not 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 search 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 91, Smart filed a formal grievance 

against England for sexual 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.

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22-11738 ABUDU, J., Dissenting 3

who was present during the incident. Malone reported the incident 

to 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 the 

person 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 three other witnesses Smart identified. When interviewed, Smart reiterated the same 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 search 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 objection. 

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 compliant. He acknowledged that England physically touched “Smart’s 

waistband, groin, and buttock area.” Six months after the incident,

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4 ABUDU, J., Dissenting 22-11738

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 boxer 

shorts, following Standard Operating Procedure # 110 for performing a Shakedown/Pat Search or Frisk.” Although the form provided a space for further 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 explain 

why he believed England’s version of events; and he did not include any notes remotely 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 Bynum 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 193127 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. 

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22-11738 ABUDU, J., Dissenting 5

Disposition [s]howed this case ‘Unfounded and Closed.’ Therefore, you are being charged for Lying.” 

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 written 

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, who 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 inmate 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 unfounded.” 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 unfounded.” 

As opposed to the seven months it took the prison to investigate 

and resolve Smart’s grievance regarding sexual abuse, England’s 

disciplinary action against Smart was received, reviewed, investigated, and resolved within five days of Bynum’s report. There is 

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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 Smart 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. Ultimately, the district court granted Defendants summary judgment, 

finding that they were entitled to qualified immunity. 

 

2 The magistrate judge ruled that Smart’s Eighth Amendment claim was timebarred. 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.

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22-11738 ABUDU, 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 criminal legal system. Sexual 

abuse 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.TIMES (April 

17, 2015), https://perma.cc/DX2S-S7NJ (“According to the Bureau 

of Justice Statistics, around 80,000 women and men a year are sexually abused in American correctional facilities. That number is 

almost certainly subject to underreporting, through shame or a victim’s fear of retaliation.”). 

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. § 30301(2), and that 

“[p]rison rape often [went] unreported” with “inmate victims often 

receiv[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 enacted 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 

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8 ABUDU, J., Dissenting 22-11738

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 guidance 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. Unfortunately, it took the United States Department of 

Justice (“DOJ”) almost ten years to issue those national standards. 

See 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, “sexual abuse,” includes “[a]ny [] intentional contact, 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 investigate 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. DEP’T. OF JUST., 

BUREAU OF JUST. STAT., Substantiated Incidents of Sexual Victimization 

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22-11738 ABUDU, 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, URB. INST., 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 these standards; otherwise, they risk losing 

certain federal funding. See 34 U.S.C. § 30306(e)(2). ADOC’s Administrative Regulation 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 definition 

of “sexual abuse,” like that of the national regulations, covers conduct by a correctional officer and includes “intentional contact, 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). 

To 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. 

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10 ABUDU, 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 Alabama. For example, in 2014, the DOJ investigated the Julia Tutwiler Prison for 

Women and found the prison had a “history of unabated staff-onprisoner 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 Steel 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, 2024). 

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 distinction 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. 

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22-11738 ABUDU, 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. (Jan. 17, 2014),

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 to 

perform oral sex on him against her will while she was in his custody. Press Release, U.S. DEP’T OF JUST., Former Alabama Deputy 

Sheriff Sentenced for Sexually Assaulting 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 Alabama 

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. DEP’T OF JUST. CIV. RTS. DIV., Investigation of Alabama’s State Prisons for Men, 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. 

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12 ABUDU, J., Dissenting 22-11738

A review of the ADOC’s Survey of Sexual Victimization 

Data corroborates the DOJ’s finding. The ADOC’s data reveal that 

its own investigations almost never sustain complaints of sexual 

abuse. For example, in its Survey of Sexual Victimization data for 

2015, the ADOC reported substantiating only three out of sixtythree 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 followed. See, e.g., 

ADOC, Survey of Sexual Victimization 4-5 (2018),

https://perma.cc/LG9Q-4XW6 (substantiating one out of twentythree 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]ntentional touching, either directly or 

through 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. 

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22-11738 ABUDU, J., Dissenting 13

thirty-two reports of staff sexual harassment). It is against this 

backdrop 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

drawing all reasonable inferences in the light 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 moving party.” Marbury v. 

Warden, 936 F.3d 1227, 1232 (11th Cir. 2019) (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 report 

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. 

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14 ABUDU, J., Dissenting 22-11738

A. Defendants Acted Outside the Scope of Their Discretionary 

Authority. 

To invoke the defense of qualified of immunity, Defendants 

initially bear the burden of establishing that they were “(a) performing a legitimate job-related function (that is, pursuing a jobrelated 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’s 

classroom behavior while disciplining students was part of her discretionary duty even if the challenged behavior might have been 

unconstitutional); Sims v. Metro. Dade County, 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. Dollar, 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 

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22-11738 ABUDU, 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 at 

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 in 

which 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 through 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 from 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 acts outside of England, Malone, and Baker’s discretionary 

authority. See Holloman, 370 F.2d at 1283 (ruling teacher acted 

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16 ABUDU, J., Dissenting 22-11738

outside of her discretionary authority when she pursued the jobrelated 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 discretionary 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 qualified immunity analysis could 

end there. However, even 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. See 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 

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22-11738 ABUDU, J., Dissenting 17

this case, the retaliation was England’s disciplinary report, Baker’s 

disciplinary proceedings, and Malone’s decision to punish him by

placing 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 plaintiff’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 punishment 

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 grievance to complain 

about 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 speech 

and 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

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18 ABUDU, J., Dissenting 22-11738

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 Defendants’ 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 id. at 1251 (“An objective standard 

for [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 inmate 

is 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 

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22-11738 ABUDU, J., Dissenting 19

1112 (“First Amendment rights to free speech and 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.”). 

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 him 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, especially by guards, would 

be dissuaded from filing a similar grievance. See Mosley, 532 F.3d at 

1275 & 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 days 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 causation 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) (finding that the record, on summary judgment, supported a causal connection between the plaintiff’s grievance and the discipline the correctional officer imposed). 

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20 ABUDU, J., Dissenting 22-11738

Defendants also argue that O’Bryant v. Finch, 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 Smart’s causation argument. 

In O’Bryant v. Finch, 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 retarded.” 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 failed 

to obey the guards’ commands and, thus, had violated prison regulations. See id. at 1215. In reaching this conclusion, the panel held 

that, “an inmate cannot state a claim of retaliation for a disciplinary 

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22-11738 ABUDU, 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 affirmed summary judgment because 

O’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 discipline 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 court 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 they 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 Moton, however, we reversed the district court’s grant of 

summary judgment, ruling that there was a genuine issue of 

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22 ABUDU, J., Dissenting 22-11738

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 grievance 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 grievance. Id. at 1342-43. Here too, as 

further 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, 455-57 (1985) (ruling that a record cannot be “so devoid of evidence that the findings of the disciplinary board were without support or otherwise arbitrary”)). 

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22-11738 ABUDU, J., Dissenting 23

In Smart’s case, there was no evidence to support England’s 

charge and the ultimate finding that Smart lied about England sexually assaulting 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 that 

Smart lied was (1) England’s sworn testimony and (2) Bynum’s conclusion 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, 

the 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 fondled 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, and the rest of the evidence introduced 

by 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 Johnson and Gayle’s line of sight. Thus, 

while Bynum concluded 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” determination under AR 454 could not serve as the 

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24 ABUDU, J., Dissenting 22-11738

basis for issuing a disciplinary report against Smart for lying, it definitely 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 failure 

to defer to such findings “would render the prison disciplinary system impotent by inviting prisoners to petition the courts for a full 

retrial 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, the 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 apply 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 at 

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22-11738 ABUDU, J., Dissenting 25

399)). The 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 right 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 ‘clearly 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 other 

acts, filed a grievance concerning racial discrimination in work assignments. 757 F.2d at 1156-57. One year later we decided Wright 

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26 ABUDU, J., Dissenting 22-11738

v. Newsome, 795 F.2d 964 (11th Cir. 1986). In Newsome, we held that 

an incarcerated person had successfully alleged a First Amendment 

claim when 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 result 

of 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 1468. 

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 speech 

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 penological objectives 

of the corrections system.” (internal quotation marks and citation 

omitted)). 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 repeatedly 

expose himself to her and to perform sexual acts for her gratification. 437 F.3d at 1112. We reversed the district 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 

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22-11738 ABUDU, J., Dissenting 27

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. Clark-Moore, 690 F.3d 1200, 1204 (11th Cir 

2012) (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 decisional 

law 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 other 

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 

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28 ABUDU, J., Dissenting 22-11738

First Amendment rights.” Id. at 1255. Therefore, this constitutional rule applied with “obvious clarity” to the specific 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. Wheeler, Officer 

Bailey of the Douglasville Police Department filed a written complaint reporting his colleagues and officers in the Douglas County 

Sheriff’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 reasonable 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 sexual abuse at the hands of a 

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22-11738 ABUDU, J., Dissenting 29

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 violation. 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 sexual 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] 

shall employ multiple protection measures, such as housing 

changes 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 sexual harassment or for cooperating 

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 reporting of, or cooperation with, sexual abuse 

or harassment allegations is strictly prohibited.”); id. § V(K)(2) 

(“The Warden and [Institutional PREA Compliance Manager] shall 

ensure inmates and staff who report sexual abuse, sexual harassment, or cooperate with a sexual abuse investigation are protected 

from retaliation by other inmates or staff.”). Although prison regulations themselves do not constitute constitutional law, they 

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certainly “undermine any claim by defendants that they were unaware of their legal obligations” not to retaliate. See Al-Amin v. 

Smith, 511 F.3d 1317, 1336 n.37 (11th Cir. 2008). Importantly, this 

is not a case where Smart is arguing there is some obscure, unknown state regulation that prohibits Defendants’ conduct. This is 

a case where there is clear Eleventh Circuit precedent prohibiting 

retaliation 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 specifically 

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 unconstitutional, 

can only be answered with a resounding “yes.” See Hope, 536 U.S.

at 731 (explaining that in determining whether a right was clearly 

established, the “salient question . . . is whether the state of the law 

. . . gave [the officers] fair warning that [their] 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 everything 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 

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Amendment right to file a grievance free from retaliation than this 

case. 

For these reasons, I respectfully dissent. 

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