FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

March 25, 2008

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 07-13752

Non-Argument Calendar

________________________

D. C. Docket No. 06-14201-CV-KMM

GLENN C. SMITH, 

Plaintiff-Appellant, 

versus 

FLORIDA DEPARTMENT OF CORRECTIONS, 

Walter A. McNeil, Secretary of Corrections, 

LARRY BARRINER, 

Defendants-Appellees. 

________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________

(March 25, 2008)

Before ANDERSON, CARNES and PRYOR, Circuit Judges.

PER CURIAM:
2

Glenn Smith, a state prisoner proceeding pro se, appeals the dismissal of his

in forma pauperis (“IFP”) 42 U.S.C. § 1983 civil rights claims for failure to state a

claim on which relief may be granted, the dismissal without prejudice of his claim

challenging the constitutionality of Florida Department of Corrections (“FDOC”)

disciplinary proceedings, and denial of his motion for reconsideration of the order

denying his motion challenging the constitutionality of the Prisoner Litigation

Reform Act (“PLRA”). 

On appeal, Smith argues that: (1) he properly stated retaliatory disciplinary

report and transfer claims, and a claim that Fla. Admin. Code r.

33-601.314 § 6-1“disobeying order rule” (providing for disciplinary confinement if

a prisoner violated any order) was facially and as-applied unconstitutional against

Secretary Walter A. McNeil of the FDOC, in his official capacity, and against

Captain Larry Barriner, in his individual capacity; (2) the district court erred by sua

sponte dismissing his claim challenging disciplinary proceedings brought against

him without giving him the opportunity to amend his complaint to add the

necessary parties; and (3) the PLRA violates the Equal Protection and Due Process

Clauses of the Constitution in that it impinges on the fundamental right of access to

the courts and thus should be reviewed under strict scrutiny, which it would not

survive.
3

I.

A district court’s sua sponte dismissal for failure to state a claim pursuant to

28 U.S.C. § 1915(e)(2)(B)(ii) is reviewed de novo, using the same standards that

govern Fed.R.Civ.P. 12(b)(6). Mitchell v. Farcass, 112 F.3d 1483, 1489-90 (11th

Cir. 1997). Under that standard, we view “the allegations in the complaint as true.”

Id. at 1490. A district court should not dismiss a complaint for failure to state a

claim “unless it appears beyond doubt that the prisoner can prove no set of facts in

support of his claim which would entitle him to relief.” Harmon v. Berry, 728 F.2d

1407, 1409 (11th Cir. 1984). We also review questions of constitutional law de

novo. United States v. Ward, 486 F.3d 1212, 1221 (11th Cir.), cert. denied,

128 S.Ct. 398 (2007). Pro se pleadings generally are held to less stringent

standards than counseled briefs. Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct.

594, 596, 30 L.Ed.2d 652 (1972). 

As an initial matter, Smith argued below that disciplinary proceedings

instituted against him after he failed to comply with a transfer order violated the

Due Process Clause. He, however, does not present argument on appeal

challenging the district court’s finding that the alleged procedural due process

violations were improperly brought against McNeil and Barriner. Instead, he

argues that he should have been given the opportunity to amend his complaint to
4

include the proper parties. Accordingly, he has abandoned these claims against 

McNeil and Barriner. See Horsley v. Feldt, 304 F.3d 1125, 1131 n.1 (11th Cir.

2002) (concluding claim not raised on appeal abandoned). 

A. Disciplinary Report and Transfer

 Prison officials may not retaliate against inmates for filing lawsuits or

administrative grievances. Wright v. Newsome, 795 F.2d 964, 968 (11th Cir.

1986). An inmate raises a constitutional claim of retaliation if he establishes that

the prison 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 claim for retaliation, the inmate must show a

causal connection between his protected conduct and the harm complained of. 

Farrow v. West, 320 F.3d 1235, 1248-49 (11th Cir. 2003). 

While state defendants sued in their official capacity for monetary damages

under § 1983 are immune from suit under the Eleventh Amendment, they are not

immune from claims seeking prospective declaratory or injunctive relief. See

Powell v. Barrett, 496 F.3d 1288, 1308 & n.27 (11th Cir. 2007); Fla. Ass’n of

Rehab. Facilities v. Fla. Dep’t of Health and Rehabilitative. Serv., 225 F.3d 1208,

1220 (11th Cir. 2000). Smith’s claims against McNeil in his official capacity

sought prospective injunctive and declaratory relief.
5

We do not recognize vicarious liability, including respondeat superior, in

§ 1983 actions. Goebert v. Lee County, 510 F.3d 1312, 1331 (11th Cir. 2007). In

Goebert, we noted that, in order to establish that a defendant committed a

constitutional violation in his official and supervisory capacities, a plaintiff must

show that the defendant instituted a custom or policy resulting in deliberate

indifference to constitutional rights or directed his subordinates to act unlawfully

or knew that the subordinates would act unlawfully and failed to stop them from

doing so. Id. While a policy is an officially adopted decision, “[a] custom is an

unwritten practice that is applied consistently enough to have the same effect as a

policy with the force of law,” and “[d]emonstrating a policy or custom requires

showing[ing] a persistent and wide-spread practice.” Id. at 1332 (third alteration in

original) (quotation omitted). 

Smith has failed to state a claim for retaliatory disciplinary proceedings

against both defendants because the disciplinary order he challenges was properly

filed after Smith disobeyed an order to cooperate with the transfer, and not because

he had filed lawsuits or administrative grievances. Further, Smith has not stated a

claim for retaliatory transfer against Barriner because Smith has not alleged that 

Barriner was in any way responsible for the decision to transfer him. Accordingly,

we affirm the district court’s decision as to those claims. 
6

 However, because Smith alleged facts sufficient to state a claim against Sec.

McNeil for supervisory liability for permitting widespread retaliatory transfers, we

vacate the district court’s decision as to that claim and remand for further

proceedings. Smith alleged that he filed an increasing number of grievances and

complaints, and was transferred in retaliation for such First Amendment activity. 

Smith also alleged a widespread practice and custom of transferring inmates in

retaliation for exercising their First Amendment rights, thus putting Sec. McNeil

on notice thereof.

B. Constitutionality of Fla. Admin. Code. r. 33-601.314, § 6-1

“Unlike the strict standards of scrutiny applicable to the constitutional rights

of persons in free society, the Supreme Court has adopted a deferential standard for

determining whether a prison regulation violates an inmate’s constitutional rights,”

and “[a] prison regulation, even though it infringes the inmate’s constitutional

rights, is an actionable constitutional violation only if the regulation is

unreasonable.” Hakim v. Hicks, 223 F.3d 1244, 1247 (11th Cir. 2000). In

examining the reasonableness of the regulation, we use the standard announced by

the Supreme Court in Turner v. Safley, 482 U.S. 78, 89, 91, 107 S.Ct. 2254, 2261,

2263, 96 L.Ed.2d 64 (1987), and consider the following factors:

(1) whether there is a “valid, rational connection” between the
7

regulation and a legitimate governmental interest put forward to

justify it; (2) whether there are alternative means of exercising the

asserted constitutional right that remain open to the inmates;

(3) whether and the extent to which accommodation of the asserted

right will have an impact on prison staff, inmates, and the allocation

of prison resources generally; and (4) whether the regulation 

represents an “exaggerated response” to prison concerns.

Hakim, 223 F.3d at 1247-48.

 The district court properly dismissed Smith’s facial constitutional challenge

to the rule. First of all, there is a rational connection between the regulation and

the legitimate governmental interest of maintaining secure prisons. Additionally,

Smith’s complaint demonstrates there are alternative means by which he can

exercise his First Amendment rights. Amending the rule to require prisoners to

obey only “legal” orders could lead to a strain on guards and resources, and Smith

does not suggest that the disobeying order rule is an exaggerated response to the

overriding need to maintain secure prisons. Moreover, because the disciplinary

report was issued for his refusal to follow an order, and not for an arbitrary reason

or in retaliation for exercising his right of free speech, the disobeying order rule

was not applied in an unconstitutional manner.

II.

The district court may not dismiss an IFP complaint pursuant to

§ 1915(e)(2)(B)(ii) without allowing leave to amend when required by
8

Fed.R.Civ.P. 15. Brown v. Johnson, 387 F.3d 1344, 1348 (11th Cir. 2004). Under

Rule 15(a), a party may amend a complaint “once as a matter of course at any time

before a responsive pleading is served.” Fed.R.Civ.P. 15(a). 

Smith’s argument on appeal that he should have been given the opportunity

to amend his complaint is baseless because he had notice that the district court

would likely dismiss without prejudice his constitutional challenge to the

disciplinary proceedings when the magistrate judge recommended precisely that,

and he did not attempt to amend his complaint. 

III.

A district court’s denial of a motion for reconsideration is reviewed for an

abuse of discretion. Corwin v. Walt Disney Co., 475 F.3d 1239, 1254 (11th Cir.

2007). We review questions of constitutional law de novo. Ward, 486 F.3d at

1221. We have analyzed and upheld under the rational basis test various

provisions of the PLRA. For example, in Harris v. Garner, 190 F.3d 1279,

1287-90 (11th Cir.) vacated, reh’g granted, 197 F.3d 1059 (11th Cir. 1999),

reinstated in relevant part, 216 F.3d 910 (11th Cir. 2000) (en banc), we held that

42 U.S.C. § 1997e(e)’s physical injury requirement: (1) did not violate the Fifth

Amendment’s Due Process Clause because it was “a limitation on a damages

remedy”; and (2) did not violate the Equal Protection Clause, as it only impacted a
9

prisoner’s remedies, not his access to the courts. In Mitchell, we held that the

filing fee requirements of § 1915(b) do not violate the Equal Protection Clause. 

Mitchell, 112 F.3d at 1487-89. In Vanderberg v. Donaldson, 259 F.3d 1321,

1324 (11th Cir.2001), we held that sua sponte dismissals under § 1915(e)(2) for

failure to state a claim does not violate the Equal Protection Clause or the

procedural protections of the Due Process Clause.

Because we have analyzed under the rational basis test, and upheld as

constitutional, many of the PLRA’s provisions, including several of the provisions

Smith argued were unconstitutional in his motion challenging the PLRA, Smith’s

assertion that the PLRA as a whole must be reviewed under, and does not survive,

strict scrutiny is meritless. Accordingly, the district court did not abuse its

discretion in denying Smith’s motion for reconsideration. 

IV. 

In conclusion, we affirm the district court’s (1) dismissal of Smith’s claims

of a retaliatory disciplinary report, (2) dismissal of Smith’s claim of retaliatory

transfer against Barriner, (3) dismissal of Smith’s constitutional challenges to the

disobeying order rule, (4) dismissal without prejudice of Smith’s challenge to

FDOC disciplinary procedures, and (5) denial of Smith’s motion for

reconsideration. We vacate the district court’s dismissal of Smith’s claim of
10

retaliatory transfer against McNeil and remand for further proceedings.

AFFIRMED IN PART, VACATED AND REMANDED IN PART