FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

MAY 27, 2010

JOHN LEY

 CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 09-15635

Non-Argument Calendar

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D. C. Docket No. 09-01035-CV-CLS-HGD

BERNARD JEMISON,

Plaintiff-Appellant,

versus

MICHAEL MITCHELL,

TAKEKA KEYES,

Defendants-Appellees.

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Appeal from the United States District Court

for the Northern District of Alabama

_________________________

(May 27, 2010)

Before BLACK, HULL and ANDERSON, Circuit Judges.

PER CURIAM:
Plaintiff Bernard Jemison, an Alabama prisoner proceeding pro se, appeals

the district court’s sua sponte dismissal of his 42 U.S.C. § 1983 complaint pursuant

to 28 U.S.C. § 1915A(b)(1) for failure to state a claim. After review, we affirm the

district court’s dismissal as to the due process claim against Defendant Takeka

Keyes. As to the First Amendment retaliation claim against Defendant Michael

Mitchell, we vacate and remand for further proceedings consistent with this

opinion.

I. BACKGROUND FACTS

A. Complaint’s Allegations

Jemison’s complaint alleges that on April 7, 2009, D-block dormitory where

Jemison was housed flooded. Correctional officer Michael Mitchell, the “cubical

operator” on duty, suspected Jemison was responsible. Mitchell ordered Jemison

placed in a “stripped cell” for one week without any possessions or a working toilet

and sink.

In response, on April 14, 2009, Jemison filed a lawsuit against Mitchell

alleging an Eighth Amendment claim of cruel and unusual punishment. Jemison’s

current complaint alleges Mitchell “was quickly notified of plaintiff[’]s civil action

against him by summons service of this court and vowed to retaliate.”

On April 21, 2009, an inmate in D-block dormitory caused another flood.

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Mitchell placed the blame on Jemison and took disciplinary action, charging

Jemison with “creating a security[,] safety, or health hazard.”

On May 10, 2009, correctional officer Takeka Keyes presided over the

hearing on Mitchell’s disciplinary charge. Keyes heard testimony from Mitchell

and Jemison and two of Jemison’s witnesses, who were also inmates in D-block

dormitory. Jemison and his two witnesses testified that another inmate, not

Jemison, was responsible for the flood. Keyes did not permit Jemison’s third

witness to testify. Keyes credited Mitchell’s testimony over the inmates’ testimony

and found Jemison guilty. Jemison was placed in “punitive segregation” for 21

days.

B. District Court Proceedings

Jemison filed this pro se § 1983 complaint, alleging that Mitchell filed a

false disciplinary report in retaliation for his earlier lawsuit and that Keyes

“concurr[ed]” with Mitchell, thus violating his First and Fourteenth Amendment

rights. Jemison sought injunctive relief and damages.

In accordance with 28 U.S.C. § 1915A, a magistrate judge conducted a sua

sponte preliminary screening and issued a report (“R&R”) recommending the

dismissal of Jemison’s § 1983 complaint for failure to state a claim, pursuant to

§ 1915A(b)(1). The R&R concluded that Jemison’s complaint failed to make a

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“plausible showing” that Mitchell was aware of Jemison’s lawsuit before he filed

the disciplinary charge against Jemison or allege other facts from which a

retaliatory motive could be inferred. The R&R noted that the district court records

showed that Mitchell had not been served with the summons and complaint for

Jemison’s prior lawsuit before Mitchell filed the disciplinary charge.

The R&R also concluded that, to the extent Jemison’s pro se complaint

asserted a due process claim against Keyes for refusing to permit Jemison’s third

witness to testify at the disciplinary hearing, this claim should be dismissed. The

R&R explained that Jemison did not have an unlimited right to call witnesses and

his complaint did not allege the nature of the missing witness’s testimony.

Alternatively, the R&R found that Jemison had not alleged that his disciplinary

segregation was a dramatic departure from the ordinary conditions of

incarceration.

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Jemison objected to the R&R, arguing that Mitchell did have knowledge of

the prior lawsuit before he filed the disciplinary report. Jemison explained that on

April 16, 2009, Mitchell “questioned” him about the details of the lawsuit, thus

In the district court, Jemison did not object to this portion of the R&R. On appeal, 1

Jemison did not challenge this ruling in his initial brief. Thus, we do not address Jemison’s due

process claim further, and the district court’s dismissal of that claim is affirmed. See Timson v.

Sampson, 518 F.3d 870, 874 (11th Cir.) (explaining that this Court does not address issues raised

for the first time in a pro se litigant’s reply brief), cert. denied, 129 S. Ct. 74 (2008); Access

Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004) (explaining that this Court

does not address issues not raised in the district court).

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proving that Mitchell knew about it before he filed the disciplinary report on April

21, 2009. Jemison complained that the magistrate judge should have given him the

opportunity to present or prove his contention, perhaps by “special report process,”

before dismissing his action. The district court overruled Jemison’s objections and

adopted the R&R. The district court dismissed Jemison’s complaint for failure to

state a claim and directed that final judgment be entered. Because the dismissal

order did not state that the dismissal was without prejudice, the dismissal was by

law with prejudice. See Fed. R. Civ. P. 41(b). Jemison filed this appeal.

II. DISCUSSION

A. Section 1915A(b)(1) Dismissals

Section 1915A requires the district court to review as soon as practicable a

prisoner’s complaint in a civil action against a government entity or officer. 28

U.S.C. § 1915A(a). Upon review, the district court must dismiss the complaint if it

“is frivolous, malicious, or fails to state a claim upon which relief may be granted.”

Id. § 1915A(b)(1).

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The standards that apply to a dismissal under Federal Rule of Civil

Procedure 12(b)(6) apply to a dismissal under § 1915A(b)(1). See Jones v. Bock,

We review de novo a district court’s sua sponte dismissal of a complaint for failure to 2

state a claim for relief under § 1915A(b)(1), taking the allegations in the complaint as true. 

Boxer X v. Harris, 437 F.3d 1107, 1110 (11th Cir. 2006). In addition, we construe pro se

pleadings liberally. Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir.1998).

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549 U.S. 199, 214-215, 127 S. Ct. 910, 920-21 (2007); Leal v. Ga. Dep’t of Corrs.,

254 F.3d 1276, 1278-79 (11th Cir. 2001) (noting that the language in

§ 1915A(b)(1) “mirrors” the language under 28 U.S.C. § 1915(e)(2)(B)(ii), which

“tracks” the language in Rule 12(b)(6)). “To survive a motion to dismiss, a

complaint must contain sufficient factual matter, accepted as true, to ‘state a claim

to relief that is plausible on its face.’” Ashcroft v. Iqbal, __ U.S. __, 129 S. Ct.

1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.

Ct. 1955, 1974 (2007)). “A claim has facial plausibility when the plaintiff pleads

factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Id.

When it appears that a pro se plaintiff’s complaint, if more carefully drafted,

might state a claim, the district court should give the pro se plaintiff an opportunity

to amend his complaint instead of dismissing it with prejudice. See Bank v. Pitt,

928 F.2d 1108, 1112 (11th Cir. 1991), overruled in part by Wagner v. Daewoo

Heavy Indus. Am. Corp., 314 F.3d 541, 542 (11th Cir. 2002) (en banc). Dismissal

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with prejudice is proper, however, if the pro se plaintiff has indicated that he does

not wish to amend his complaint or if a more carefully drafted complaint could not

Although Wagner overruled Bank as to counseled litigants, it specifically stated that it 3

did not address pro se litigants. See Wagner, 314 F.3d at 542 n.1. Thus, the Bank rule remains

applicable to pro se litigants when their complaints are dismissed with prejudice. Id.

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state a valid claim. Id.

B. Retaliatory Discipline Claim

“The First Amendment forbids prison officials from retaliating against

prisoners for exercising the right of free speech.” Farrow v. West, 320 F.3d 1235,

1248 (11th Cir. 2003). An inmate raises a First Amendment claim of retaliation if

he shows that the prison official disciplined him for filing a grievance or lawsuit

concerning the conditions of his imprisonment. Wildberger v. Bracknell, 869 F.2d

1467, 1468 (11th Cir. 1989). To establish a retaliation claim, the inmate must

show, inter alia, a causal connection between his protected conduct and the prison

official’s action. Farrow, 320 F.3d at 1248-49.

Accepting the allegations in the complaint as true, after Jemison filed a

lawsuit against Mitchell on April 14, 2009, Mitchell filed a false disciplinary report

on April 21, 2009 accusing Jemison of flooding D-block dormitory. Furthermore,

Jemison’s complaint alleges that when Mitchell learned of the lawsuit, he “vowed

to retaliate.”

Even assuming arguendo that these allegations are insufficient to state a

facially plausible claim, Jemison’s objection to the R&R, construed liberally, asked

for leave to amend his complaint to allege additional facts showing Mitchell knew

of the lawsuit before he filed the disciplinary report. Specifically, Jemison claimed

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that Mitchell asked him about the details of the lawsuit on April 16, 2010. This

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proposed allegation plus the short, seven-day time period between the filing of

Jemison’s lawsuit and the filing of the allegedly false disciplinary report are

sufficient to support a reasonable inference that the latter motivated the former.

Given that allowing Jemison to amend his complaint would not have been

futile, under our Bank rule, the district court should have allowed Jemison leave to

amend his complaint rather than dismissing it with prejudice. Accordingly, we

affirm the district court’s dismissal of Jemison’s due process claim against Keyes.

However, we vacate the district court’s dismissal as to Jemison’s First Amendment

retaliation claim against Mitchell and remand for proceedings consistent with this

opinion.

AFFIRMED IN PART, VACATED AND REMANDED IN PART.

On appeal, Jemison contends that even if Mitchell had not yet been served, Mitchell 4

nonetheless knew of the lawsuit before he filed the disciplinary report because he told Jemison

he knew about it. Jemison suggests that Mitchell may have learned of the lawsuit because prison

officials review outgoing mail. Jemison also clarifies that it was when Mitchell asked him about

the lawsuit that Mitchell threatened to retaliate.

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