[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 11-13481

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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 TJOFLAT, 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

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42 U.S.C. § 1983 civil rights action based on an alleged widespread 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 fact 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 and lascivious act upon a 

child. More importantly for the case before us, Smith is an extremely litigious 

inmate, having 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 Martin Correctional Institute 

(“MCI”), Smith filed 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, the United States District Court 

for the Southern District of Florida also sanctioned Smith by prohibiting him from proceeding in 

forma pauperis in the federal courts.

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and then initiated a separate lawsuit against the FDOC. Fifteen days after Smith 

filed that lawsuit, the FDOC issued an order to transfer him to the Okeechobee 

Correctional Institute (“OCI”) for the stated reason of “population adjustment.” 

On the morning of March 18, 2003, Smith was informed that he was being

transferred later that 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 initiated 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 confinement if an inmate violates 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 reversed the dismissal of Smith’s claim of retaliatory transfer. 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 injunctive 

and declaratory relief, we held that Smith had “alleged facts sufficient to state a 

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

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claim against [Secretary] McDonough for supervisory liability for permitting 

widespread 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, the parties began discovery, and the FDOC sought 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 deposed, 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. The 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, Smith filed two additional motions to compel, requesting the court to 

 3 The FDOC’s motion was made pursuant to Federal Rule of Civil Procedure 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 unable to provide a copy to Smith. The FDOC offered no other 

explanation as to why it refused 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 conditioned on the 

FDOC ordering a copy of the deposition for itself. We find such conduct strange and 

unacceptable.

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compel the FDOC to allow Smith to correspond with several named inmates, 

identified as possible witnesses. The court denied the motions, ordering that Smith 

could only communicate with other inmates within the rules and regulations of his 

place of confinement.

The FDOC moved for summary judgment and argued that Smith failed to 

present sufficient evidence to rebut the non-retaliatory reasons for transfer offered 

by the FDOC. The 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 that 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 widespread pattern of transferring 

litigious inmates as punishment. The Magistrate recommended – and the court 

ultimately adopted by paperless order – granting the FDOC’s motion because it 

determined that Smith failed to present evidence beyond temporal proximity 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.

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Smith now appeals the judgment in favor of the FDOC, arguing that he was 

not provided with a fair opportunity to conduct discovery, but even with limited 

discovery, he established an issue of material fact sufficient to survive summary 

judgment. Further, Smith argues that he should have been permitted to amend his 

complaint and, due to the difficulty he faced in conducting discovery, should have 

been appointed 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 judgment 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 compels 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 Attorney Neil Schuster as 

counsel for the appellant. We applaud Mr. Schuster for his pro bono work in submitting 

additional briefs and orally arguing this case. We hope that either he or someone like him is

appointed as counsel for Smith during the additional proceedings.

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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 amend 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 judgment 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 motion for summary judgment, the nonmoving party may not rely solely on the pleadings, but must show by depositions, 

documents, affidavits, interrogatory answers, or other materials that specific facts

exist demonstrating a genuine issue for trial. Celotex, 477 U.S. at 324.

For an inmate to prevail on a retaliatory transfer claim, he must establish that 

(1) he engaged in constitutionally protected conduct; (2) the defendant’s retaliatory 

act 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 

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the protected conduct was a motivating factor behind the harm, the burden of 

production shifts to the defendant. Smith v. Mosley, 532 F.3d 1270, 1278 (11th 

Cir. 2008). The 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, only the causal connection element is in question. To 

support his claim that the transfers were retaliatory, Smith attached inmate 

affidavits to his complaint and his response to the FDOC’s motion for summary 

judgment. These affidavits established, among other things, that Smith and other 

inmates were transferred immediately after filing lawsuits and/or grievances, and 

inmates who filed lawsuits and grievances were transferred more often than the 

average inmate. When viewing the evidence, including the affidavits, 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 transfer, 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 

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“population adjustment.”6 The FDOC failed to show that Smith still would have 

been transferred in the absence of his filing the lawsuits; thus, 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-of-evidence grounds when Smith was effectively 

blocked from gathering essential evidence. Summary judgment is premature when 

a party is not provided a reasonable opportunity to discover information essential 

to his opposition. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 n.5 

(1986); Fed. R. Civ. P. 56(d). This Court previously held that Smith’s complaint 

stated a cause of action alleging a widespread practice and custom of transferring 

inmates in retaliation for exercising their First Amendment rights. Smith, 318 F.

App’x at 728. As Smith sufficiently stated a plausible cause of action, he is 

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 satisfies 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 medical resources and security. 

However, no evidence was submitted stating what prison need required that Smith, as opposed to 

any other inmate, be transferred. Thus, there remains a fact-question as to why Smith was 

included in the group of 50 inmates transferred 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).

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states a viable claim, “the plaintiff ordinarily will be entitled to some discovery.”). 

If 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 these

identified inmates clearly prevented Smith from being able to present relevant and 

essential facts.9

 In his response to the FDOC’s motion for summary judgment, 

Smith moved for a stay until discovery was complete, specifically stating he was 

not provided with his deposition transcript and other evidence was not produced. 

 8 Smith was not on a witch hunt, but identified specific inmates and articulated reasons to expect 

these inmates possessed information relevant to Smith’s claim. Our analysis may have been 

different had Smith been unable to identify the inmates or requested the FDOC to create the list.

9 This Court 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 

communication are called into question. For example, the FDOC did not provide Smith with his 

deposition transcript, waiting 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 provide 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 requiring 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 the heart of its decision not to allow Smith to communicate with the identified 

inmates. Regardless, the security threat will be alleviated by appointing Smith counsel and 

allowing counsel to communicate with the identified prisoners, thereby negating concerns of 

direct contact between inmates.

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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 present essential facts in support of his 

opposition to summary judgment. Thus, the court abused its discretion by

prematurely granting summary judgment and we remand this case so that the 

parties may conduct additional discovery.

Furthermore, 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 essential 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. 1990) 

(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 hindered 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).

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determination.11 While no single factor requires appointment of counsel, in the 

aggregate, this case presents exceptional 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 time 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. The Ulmer factors cut in 

favor of appointing counsel for Smith, including “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.

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Accordingly, the order of the district court granting summary judgment dismissing 

Smith’s claims is reversed. The district court shall appoint counsel for Smith. The 

case is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED with instructions.

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