[ PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

________________________ No. 11

- 13481

________________________ D.C. Docket No. 2:06

- cv - 14201

- KMM

GLENN C. SMITH, Plaintiff

- Appellant,

versus FLORIDA DEPARTMENT OF CORRECTIONS, LARRY BARRINER, TONI BOWDEN, Defendants

- Appellees.

________________________ Appeal from the United States District Court for the Southern District of Florida

________________________ (February 20, 2013) Before T JOFLAT , MARTIN and FAY, Circuit Judges.
PER CURIAM: Glenn Smith, a Florida state prisoner, appeals a summary judgment order in favor of the Florida Department of Corrections (“FDOC”). Smith brought a pro se

Case: 11-13481 Date Filed: 02/20/2013 Page: 1 of 132 42 U.S.C. § 1983 civil rights action based on an alleged wide spread practice and custom of the FDOC to transfer inmates in retaliation for exercising their First Amendment rights. On appeal, Smith argues that he was denied fair discovery, but even with limited discovery, he established questions of f act sufficient to survive summary judgment. After oral argument, reviewing the record, and for the reasons that follow, we vacate the summary judgment and remand for further proceedings consistent with this opinion.
I. FACTS Smith is a Florida state prisoner who is serving consecutive life sentences for convictions of sexual battery, assault , and a lewd an d lascivious act upon a child. More importantly for the case before us, Smith is an extremely litigious inmate, havi ng filed at least ten separate lawsuits against the FDOC and its employees from 2001 to 2006 alone. Smith

– who became a certified inmate law clerk upon incarceration

– has taken it upon himself , through grievances and lawsuits, to make what he considers positive social changes to the Florida prison system. 1
In February 2003, while housed at the Mar t in Correctiona l Institute (“MCI”), Smith fi led an appeal from a state court’s decision in favor of the FDOC

1 Not all of Smith’s litigation has been warranted, as many of his claims have been frivolous. In fact, two of Florida’s circuit courts have sanctioned Smith for such claims, prohibiting him from filing any pro se documents in those courts. In a separate matter, t he United States Distr ict Court for the Southern District of Florida also sanctioned Smith by prohibiting him from proceeding in forma pauperis in the federal courts.

Case: 11-13481 Date Filed: 02/20/2013 Page: 2 of 133 and then initiat ed a separate lawsuit against the FDOC

. Fi fteen days after Smith filed that la wsui t, the FDOC issued an order to transfer him to the Okeechobee Correctional Institute (“OCI”) for the stated reason of “population adjustment.”
O n the morning of March 18, 2003, Smith was informed that he was being transferred later th at day. Smith resisted the transfer by refusing to board the bus, but was ultimately shackled and forced on the bus to OCI. Upon arriving at OCI, Smith was given a disciplinary report for disobeying the order to board the bus. On August 11, 2006, Smith ini tiated the present case by filing a pro se complaint under § 1983, (1) alleging his transfer to OCI was in retaliation for his litigation ; ( 2) challenging the constitutionality of a FDOC regulation providing for disciplinary confi nement if an inmate violat es what the inmate deems an unlawful order; and (3) challenging the validity of the disciplinary report he received. Smith sought monetary, injunctive and declaratory relief from the Secretary of the FDOC and Larry Barriner. 2
The district court dismissed the complaint in its entirety, but , on appeal, this
Court revers ed the dismissal of Smith’s claim of retaliatory transfe r . Smith v. Fla. Dep ’ t of Corr. , 318 F. App’x 726, 728 (11th Cir. 2008). Finding that Smith’s claims against the Secretary in his official capacity sought prospective injunc tive and declaratory relief, we held th at Smith had “alleged facts sufficient to state a

2 Barriner was the captain at MCI at the time of Smith’s transfer.

Case: 11-13481 Date Filed: 02/20/2013 Page: 3 of 134 claim against [Secretary] McDonough for supervisory liability for permitting wi despread retaliatory transfers . . .

. Smith also alleged a widespread practice and custom of transferring inmates in retaliation for exercising their First Amendment rights, thus putting [the Secretary] on notice thereof.” Id. at 728

- 29. After remand , t he parties began discovery , and the FDOC s ought leave to depose the incarcerated Smith. 3 The court entered an order permitting the deposition, but warned the FDOC about taking advantage of the pro se deponent and required the FDOC provide Smith a copy of his deposition upon its completion

. Prior to being depos ed , Smith unsuccessfully moved to have counsel appointed and moved for leave to amend his complaint. Smith was deposed on October 24, 2008, but he was not provided a copy of the transcript. 4
Smith contested several of the FDOC’s actions during discovery . T he trial court granted Smith’s first motion to compel, directing the FDOC to provide responses or objections to Smith’s discovery requests. On the last day of discovery, S mith filed two additional motio ns to compel, requesting the court to

3 The FDOC’s motion was made pursuant to Fed eral R ule of Civ il P rocedure 30(a)(2)(B), which requires parties obtain leave of court if a deponent is confined in prison.

4 After Smith opined in his response to the FDOC’s motion for summary judgment that he did not receive the deposition transcript, the FDOC filed a notice stating that it never ordered the transcript , thus it was unab le to provide a copy to Smith. The FDOC offered no other explanation as to why it r efused to obey the court’s order to provide Smith a copy, nor did the FDOC offer any reason to believe that the court’s order was in any way condition ed on the FDOC ordering a copy of the deposition for itself. We find such conduct strange and unacceptabl e. Case: 11-13481 Date Filed: 02/20/2013 Page: 4 of 135 compel the FDOC to allow Smith to correspond with several named inmates, ide ntified as possible witnesses. The court denied the motions , order ing that Smith could only communicate with o ther inmates within the rules and regulations of his place o f confinement.
T he FDOC moved for summary judgment and argu ed th at Smith failed to present sufficient evidence to rebut the non

- retaliatory reasons for transfer offered by the FDOC. T he FDOC included affidavits from two employees who stated that Smith was one of 50 inmates transferred from MCI for population adjustment and the employee who affected the transfer orders had no personal knowledge of Smith

. In his response, Smith argued tha t discovery was incomplete, that he had not been provided his deposition transcript, and that he had proved a material dispute of facts as to the motivation for his transfer by submitting affidavits from
other inmates , which demonstrated the FDOC’s widespr ead p attern of transferring litigious inmates as punishment. The Magistrate recommended

– a nd th e court ultimately adopted by paperless order

– granting the FDOC’s motion because it determined that Smith failed to p resent evidence beyond temporal proxim i t y and failed to refute the evidence that the FDOC’s decision

- makers did not know Smith. However, the Magistrate did not address any of the discovery issues or the failure of the FDOC to provide Smith with his deposition transcript.

Case: 11-13481 Date Filed: 02/20/2013 Page: 5 of 136 Smith now appeals the j udgment in favor of the FDOC, arguing that he was not provided with a f air opportunity to c onduct discovery, but even with limited discovery, he established a n issue of material fact sufficient t o survive summary judgment. Further, Smith argues that he s hould have been permitted to amend his complaint and , due to the difficulty he faced in conducting discovery, should have been appoint ed counsel. 5
II. STANDARDS OF REVIEW We review a district court’s refusal to grant a continuance of a summary judgment motion in order to conduct discovery for abuse of discretion. Burks v. Am. Cast Iron Pipe Co. , 212 F.3d 1333, 1336 (11th Cir. 2000). A district court’s grant of a motion for summary j udgment is reviewed de novo , and this Court uses the same legal standards as the district court. Id. Summary judgment is appropriate when the evidence, viewed in the light most favorable to the nonmoving party, presents no genuine issue of fact and compe ls judgment as a matter of law. Celotex Corp. v. Catrett , 477 U.S. 317, 322

- 23 (1986). A court’s appointment of counsel in a civil case is warranted only in exceptional circumstances, and whether such circumstances exist is committed to the district court ’s discretion. Steele v. Shah , 87 F.3d 1266, 1271 (11th Cir. 1996).

5 After Smith filed a pro se brief on appeal, this Court appointed Attorn ey Neil Schuster as counsel for the appellant . We applaud Mr. Schuster for his pro bono work in submitting additional brief s and orally arguing this case. We hope that either he or someone like him is appoin ted as counsel for Smith during the additional proceedings.

Case: 11-13481 Date Filed: 02/20/2013 Page: 6 of 137 The trial court has broad discretion in making the determination. Bass v. Perrin , 170 F.3d 1312, 1320 (11th Cir. 1999 ). This Court reviews a district court’s denial
of a motion to amen d a complaint for abuse of discretion, although the underlying legal conclusion of whether a particular amendment to the complaint is futile is reviewed de novo

. Corsello v. Lincare, Inc. , 428 F.3d 1008, 1012 (11th Cir. 2005).
III. DISCUSSION Summary judgmen t is proper “if the movant shows that 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). “The moving party bears the initial burden of showing the court . . . that there are no genuine issues of material fact that should be decided at trial.” Allen v. Bd. of Pub. Educ. for Bibb Cnty. , 495 F.3d 1306, 1313 (11th Cir. 2007). In opposing a mot ion for summary judgment, the non

moving party may not rely solely on the pleadings, but must show by depositions, documents, affidavits, interrogatory answers, or oth er materials that specific facts exist demonstrating a genuine issue for trial. Celotex , 477 U.S. at 324. For an inmate to prevail on a retaliat ory transfer claim, he must establish that (1) he engaged in constitutionally protected conduct ; (2) the defendant’s retaliatory

a ct adversely affected the protected conduct ; and (3) there is a causal connection between the retaliatory act and the adverse effect on the conduct

. Bennett v. Hendrix , 423 F.3d 1247, 1250 (11th Cir. 2005). Once the plaintiff establishes that

Case: 11-13481 Date Filed: 02/20/2013 Page: 7 of 138 the protected conduct was a motivating factor behind the harm, the burden of prod uct ion shifts to the defendant. Smith v. Mosley , 532 F.3d 1270, 1278 (11th Cir. 2008). T he defendant can prevail on summary judgment if it can show it would have taken the same action in the absence of the protected activity. Id. In the present case, on ly the causal con nection element is in question. To support his claim that the transfers were retaliatory , Smith attached inmate affidavit s to his complaint and his response to the FDOC’s motion for summary judgment. These affidavits established , among other things, that Smith and othe r inmates were transferred immediate ly after filing lawsuits and/or grievances , and
inmates who filed lawsuits and grievances were transferred more often tha n the average inmate

. When viewing the evidence, including the af fidavits, in the light most favorable to Smith, he sufficiently established that one could conclude that the protected conduct was a motivating factor behind the transfers. To rebut Smith’s claims that the protected conduct was a motivating factor in his t ransfer , the FDOC submitted affidavits from employees stating that Smith was transferred for the non

- retaliatory reason of “population adjustment , ” and the employees who affected the orders had no knowledge of Smith at the time he was transferred from MCI. While it attempted to establish an innocuous reason for Smith’s transfer, the FDOC failed to present any evidence as to why Smith was included in the group of 50 inmates transferred from MCI for the purpose of

Case: 11-13481 Date Filed: 02/20/2013 Page: 8 of 139 “population adjustment.” 6 T he FDOC failed t o show that Smith still would have been transferred in the absence of his filing the lawsuit s ; t hus, there remains an unresolved question of material fact and summary judgment was improper. In addition, the trial court abused its discretion by granting summary judgment on insufficiency

- o f

- evidence grounds when Smith was effectively blocked from gathering essential evidence . S ummary judgment i s premature when a party is not provided a reasonable opportunity to discover information essential to his opposi tion. See Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 250 n.5 (1986); Fed. R. Civ. P. 56(d). This Court previously held t hat Smith’s complaint stated a cause of action alleging a widespread practice and custom of transferring inmates in retaliation fo r exercising their First Amendment rights. Smith , 318 F. App’x at 728. As Smith sufficiently stated a plausible cause of action , he i s entitled to some meaningful discovery. 7 See, e.g., Crawford

- El v. Britton , 523 U.S. 574, 598 (1998) (ruling that while Fed. R. Civ. P. 26 grants discretion to courts to limit discovery, once a plaintiff satisfie s the threshold legal issues and

6 The FDOC submitted evidence that transfers for population adjustment are permitted under statute and policy to meet prison needs, including preserving medi cal resources and security. However, no evidence was submitted stating what prison need required that Smith, as opposed to any other inmate, be tr ansferred. Thus, there remains a fact

- question as to why Smith was included in the group of 50 inmates transferr ed from MCI. Someone selected 50 inmates for transfer, Smith is entitled to know how and why these selections were made.

7 Relevant discovery in this case would necessarily include facts related to other inmates because “[t]o establish a policy or custom , it is generally necessary to show a persistent and wide

- spread practice.” Depew v. City of St. Marys, Ga. , 787 F.2d 1496, 1499 (11th Cir. 1986).

Case: 11-13481 Date Filed: 02/20/2013 Page: 9 of 1310 states a viable claim, “the plaintiff ordinarily will be entitled to some discovery.”).
I f the nonmovant shows it cannot present facts essential to justify its opposition , the district court may defer judgment, deny the motion, allow time for additional discovery, or issue any other appropriate order. Fed. R. Civ. P. 56(d). Smith sought to communicate with inmates who had previously reported or complained about being transferred in retaliation for filing grievances and complaints. 8 The FDOC’s blocking of Smith ’s communication with the se identified inmates clearly prevented Smith from being able to present relevant and essential facts. 9 I n his response to the FDOC’s motion for summary judgment, Smith moved for a st ay until discovery was complete, specifically stating he w as not provided with his deposition transcript and other evidence was not produced

.

8 Smith was not on a witch hunt, but identified specif ic inmates and articulated reason s to expect the se inm ates possessed information relevant to Smith’s claim. Our analysis may have been different had Smith b een unable to identify the inmates or requested the FDOC to create the list.

9 This Co urt recognizes that prison security is a legitimate concern of the FDOC and the FDOC has an interest in limiting communication between inmates. However, because the FDOC did not act entirely straightforward during discovery, the FDOC’s intentions in blocking Smith’s communi cation are called into question. For example, the FDOC did not provide Smith with hi s deposition transcript, wait ing until after Smith filed his response to the summary judgment motion to file a notice with the court. The notice stated only that the FDOC did not pro vide the transcript because it did not order the transcript

. In its reply to its motion for summary judgment, the FDOC then claimed it was an immaterial technicality not to provide Smith the transcript

. This is despite the court order r equir i ng the FDOC provide the transcript to Smith and promises by counsel for the FDOC at the conclusion of the deposition that the transcript would be provided to Smith

. Because of the FDOC’s suspect conduct, we are not convinced that prison security was at th e heart of its decision not to allow Smith to communicate with the identified inmates. Regardless , the security threat will be alleviat ed by appointing Smith counsel and allowing counsel to communicate with the identified prisoners, thereby negati ng conce rns of direct contact between inmates.

Case: 11-13481 Date Filed: 02/20/2013 Page: 10 of 1311 Under the more lenient standards afforded to pro se litigants, 10 Smith made a sufficient showing

– through this response and his previous motions to compel

– to the district court that he was unable to pr ese nt essential facts in support of his opposition to summary judgment. T hus, t he court abus ed its discretion by prematurely granting summary judgment and we remand this case so that the parties may conduct addit ional discovery

. Further more , while civil plaintiffs have no right to counsel, the appointment of counsel is appropriate in exceptional circumstances. Dean v. Barber , 951 F.2d 1210, 1216 (11th Cir. 1992). “The key is whether the pro se litigant needs help in presenting the essentia l merits of his or her position to the court.” Kilgo v. Ricks , 983 F .2d 189, 193 (11th Cir. 1993). In the present case, Smith alleged a widespread practice of retaliatory transfers by the FDOC, not simply incidents he personally experienced. Cf. Fowler v. Jones , 899 F.2d 1088, 1096 (11th Cir. 19 90 ) ( finding no exceptional circumstances, when, among other factors, the plaintiff’s claims were based on incidents mostly witnessed by himself). The discovery
issues and the suspect conduct of the FDOC also hin dered Smith’s ability to present the essential merits of his case. Appointment of counsel would alleviate the security concerns related to Smith directly interviewing other inmates , as well

as help sharpen the issues

– potentially shortening the trial and assisting in a just

10 See, e.g

. , Boxer X v. Harris , 437 F.3d 1107, 1110 (11th Cir. 2006).

Case: 11-13481 Date Filed: 02/20/2013 Page: 11 of 1312 determination. 11 While no single factor requires appointment of counsel, in the aggregate, this case presents except ional circumstances that necessitate appointment of counsel. As for Smith’s attempts to amend his complaint, we cannot conclude that the trial court abused its discretion in denying Smith’s motions. However, on remand, if Mr. Schuster

– or whoever is appointed as Smith’s counsel

– determines an amendment to Smith’s initial complaint is proper , appropriate action could be taken.
IV. CONCLUSION To recapitulate, summary judgment was improper because a question of material fact existed as to the reason Smith was included among the inmates transferred from MCI. Additional t ime for discovery is also required to allow the parties to gather essential evidence related to the alleged widespread practice of retaliatory transfers. Finally, due to the complexities of Smith’s claims, the discovery issues he faced, and the conduct of the FDOC, exceptional circumstances exist that require the appointment of counsel for Smith.

11 This Court has often looked to the factors outlined in Ulmer v. Chancellor , 691 F.2d 209 (5th Cir. 1982) for guidance in determining if exceptional circumstances warrant appointment of counsel. See , e.g. , Fowler , 899 F.2d at 1096; Steele , 87 F.3d at 1271. Th e Ulmer factors cut in favor of appointing counsel for Smith, includin g “whether the indigent is in a position to investigate adequately the case” and “whether the appointment of counsel would be a service to [the plaintiff] . . . the court and defendant as well, by sharpening the issues in the case, shaping the examination of witnesses, and thus shortening the trial and assisting in a just determination.” Ulmer , 691 F.2d at 213.

Case: 11-13481 Date Filed: 02/20/2013 Page: 12 of 1313 Accordingly, the order of the district court granting summary judgment dismissing Smith’s claims is reversed. The district court shall appoint counsel for Smith . T he
case is remanded f or further proceedings consistent with this opinion. REVERSED AND REMANDED with instructions. Case: 11-13481 Date Filed: 02/20/2013 Page: 13 of 13