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 IN T H E U N IT E D STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

LEE MARVIN HARPER, JR.,

Plaintiff,

vs. Case No. 3:11cv6/LC/CJK

MIKE BABCOCK,

Defendant.

REPORT AND RECOMMENDATION

This cause is before the Court upon plaintiff’s amended civil rights complaint

filed under 28 U.S.C. § 1331 and Bivens. (Doc. 5). Upon review of the amended

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complaint, the Court concludes that plaintiff has not presented an actionable Bivens

claim, and that dismissal of this case is warranted. 

BACKGROUND AND PROCEDURAL HISTORY

Plaintiff, proceeding pro se and in forma pauperis, is a federal inmate currently

incarcerated at the Federal Correctional Institution - Low in Beaumont, Texas(“FCIBeaumont Low”). Plaintiff’s amended complaint names one defendant: Mike

Babcock, the Warden of the Federal Prison Camp in Pensacola, Florida (“FPCPensacola”). (Doc. 5, p. 2). Plaintiff claims defendantBabcock retaliated against him

Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999, 1

29 L. Ed. 2d 619 (1971) (recognizing an implied private action for damages against individual

federal officers alleged to have violated a citizen’s constitutional rights).

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for filing a grievance by imposing a “Greater Security” Management Variable on

plaintiff’s custody classification, and ordering plaintiff’s transfer to a higher security

prison. Plaintiff claims Babcock’s actions violated the First Amendment, the Equal

Protection Clause of the Fifth Amendment, 28 C.F.R. § 541.17(i), and Bureau of

Prisons’ Program Statement 1040.04 which prohibits discrimination. (Id., pp. 5-9). 

As relief, plaintiffseeks punitive damages and declaratory and injunctive relief. (Id.,

pp. 7, 10). 

Plaintiff alleges the following facts in support of his claims. On November 18,

2009 while plaintiff was housed at FPC-Pensacola, plaintiff and two other inmates

(Howard Gaines and Percy McClendon) were charged with committing a prohibited

act. (Doc. 5, p. 5). The inmates were placed in administrative segregation pending

the outcome of a disciplinary hearing. (Id.). On December 10, 2009, plaintiff, Gaines

and McClendon were found not guilty of the infraction. (Id.). The Disciplinary

Hearing Officer (“DHO”) ordered that the incident report be expunged from the

inmates’ records. (Id.). Plaintiff states that he remained in segregation despite the

finding of not guilty, and that he filed a grievance concerning his continued

segregation. (Id.). On January 6, 2009, defendant Babcock, while making routine

rounds of the segregation units, stated to plaintiff: “Young man I strongly advise you

to stop filing all that dam[n] paper. . . . Just lay back and relax, trust me you’ll be out

of this place soon.” (Id., pp. 5-6). Plaintiff states that Inmates Gaines and

McClendon did not file any grievances and “were soon transferred back to FPC

Pensacola,” whereas plaintiff was not. (Id., p. 6). Instead, defendant Babcock

referred plaintiff for an administrative transfer and placed a “Greater Security”

Management Variable on plaintiff’s custody classification, which raised plaintiff’s

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custody status from “minimum” to “low security” and restricted plaintiff from being

housed at a minimum security facility such as FPC-Pensacola for 24 months. (Id.). 

Plaintiff asserts that defendant Babcock, in applying this Management Variable and

requesting an administrative transfer, improperly considered the incident report in

retaliation for plaintiff having grieved his continued confinement in segregation. 

Plaintiff alleges that “but for the Plaintiff exercising his right to file a grievance,

Plaintiff would not have been transferred to a higher security level prison.” (Id., p.

6). 

The attachments to plaintiff’s amended complaint include a referral

memorandum to the Designations and Sentence Computation Center Administrator,

dated January 29, 2010. (Doc. 5, Attach. B). The memorandum, prepared by

plaintiff’s Case Manager L. Potter and approved by defendant Babcock, refers

plaintiff for: (1) transfer to “any appropriate low security facility; Adjustment

transfer - code 330;” (2) application of a “Greater Security” Management Variable to

plaintiff’s custody classification; and (3) an updated Management VariableExpiration

Date of January 29, 2012. (Id.). The memorandum notes the following with regard

to plaintiff’s institution adjustment: 

Inmate Harper arrived at FPC Pensacola on November 18, 2007,

for service of his sentence. He was sentenced in the Southern District

of Mississippi to serve 180 months for Conspiracy to Possess With

Intent to Distribute Cocaine Base and Criminal Forfeiture. Inmate

Harper has a projected release date of October 21, 2013. Outside of his

current incident, his institutional adjustment has been satisfactory during

the time he has been incarcerated at FPC Pensacola.

(Id.). The memorandum provides the following “rationale” for the referral:

On November 18, 2009, during a routine room search, a cell

phone charger was found inside the mattress of the bed assigned to

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inmate Harper. A cell phone was also found inside his shoe underneath

the same bed. Because the devices were found in a common area and

not in a locked locker, nor any SIMS cards found, there was nothing to

link them specifically to inmate Harper and the incident report was

expunged. However, the cell phone and charger were found in an area

most likely belonging to inmate Harper. Cellular phones are considered

sensitive equipment and a hazardous tool. Although the incident report

was expunged, a threat assessment was conducted by SIS [Special

Investigation Services] Department and it was determined that although

a disciplinary transfer is not possible, the SIS Department recommends

an administrative transfer to minimize the likelihood inmate Harper will

be able to breach the security of the facility by acquiring a cellular

phone.

(Id.). In a section concerning any past or present behavior and/ormanagement/inmate

concerns, it is noted: “Inmate Harper has maintained clear conduct during this period

of incarceration.” (Id.). In addition to the referral memorandum, plaintiff has

attached a copy of his Chronological Disciplinary Record which contains no entries. 

(Doc. 5, Attach. C).

DISCUSSION

Because plaintiff is proceeding in forma pauperis, the Court may dismiss the

case if satisfied that the action is “(i) frivolous or malicious; (ii) fails to state a claim

on which relief may be granted; or (iii) seeks monetary relief against a defendant

who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). The Court must read

plaintiff’s pro se allegations in a liberal fashion. Haines v. Kerner, 404 U.S. 519, 92

S. Ct. 594, 30 L. Ed. 2d 652 (1972). Dismissals for failure to state a claim are

governed by the same standard as Federal Rule of Civil Procedure 12(b)(6). Mitchell

v. Farcass, 112 F.3d 1483, 1485 (11 Cir. 1997). The Court accepts all well pleaded th

factual allegations in the complaint as true and evaluates all reasonable inferences

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derived from those facts in the light most favorable to the plaintiff. Hunnings v.

Texaco, Inc., 29 F.3d 1480, 1483 (11 Cir. 1994). There are a few exceptions to this th

rule, however, such as where the facts alleged are internally inconsistent or where

they run counter to facts of which the Court can take judicial notice. 5B CHARLES A.

WRIGHT AND ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1357

(2008). Further, only well pleaded factual allegations are taken as true and only

reasonable inferences are drawn in favor of the plaintiff. See Oladeinde v. City of

Birmingham, 963 F.2d 1481, 1485 (11 Cir. 1992); Marrero v. City of Hialeah, 625

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F.2d 499, 502 (5 Cir. 1980); see also Associated Builders, Inc. v. Ala. Power Co.,

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505 F.2d 97, 100 (5 Cir. 1974) (“unwarranted deductions of fact are not admitted as th

true”). Mere “labels and conclusions” are not accepted as true. Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1964-65, 167 L. Ed. 2d 929 (2007)

(citing Papasan v. Allain, 478 U.S. 265, 286, 106 S. Ct. 2932, 92 L. Ed. 2d 209

(1986) (noting that courts “are not bound to accept astrue a legal conclusion couched

as a factual allegation”)); Ashcroft v. Iqbal, 556 U.S. —, 129 S. Ct. 1937, 1951, 173

L. Ed. 2d 868 (2009) (explaining that conclusory allegations are not entitled to a

presumption of truth); Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1266 (11 Cir. th

2009) (stating that “in testing the sufficiency of the plaintiff’s allegations, we do not

credit . . . conclusory allegations as true”); see also Weissman v. Nat’l Ass’n of Sec.

Dealers, 500 F.3d 1293, 1305 (11 Cir. 2007) (en banc) (Tjoflat, J., dissenting) (

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“[A]ny conclusory allegations, unwarranted deductions of fact or legal conclusions

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11 Cir. 1981) (en banc), the Eleventh 2 th

Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to

October 1, 1981.

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masquerading as facts do not prevent dismissal.”) (citing Associated Builders, Inc.,

505 F.2d at 99).

As the Supreme Court reiterated in Ashcroft, supra, although Rule 8 of the

Federal Rules of Civil Procedure does not require detailed factual allegations, it does

demand “more than an unadorned,the-defendant-unlawfully-harmed-me accusation.” 

Iqbal, 129 S. Ct. at 1949. A complaint must state a plausible claim for relief. “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. The mere possibility that the defendant acted unlawfully is insufficient

to survive dismissal for failure to state a claim. Id. The complaint must include

“[f]actual allegations . . . [sufficient] to raise a right to relief above the speculative

level,” Twombly, 550 U.S. at 555, 127 S. Ct. at 1965, that is, “across the line from

conceivable to plausible.” Id., 550 U.S. at 570, 127 S. Ct. at 1974. A complaint is

also subject to dismissal under Rule 12(b)(6) when its allegations – on their face –

show that an affirmative defense bars recovery on the claim. Marsh v. Butler Cnty.,

Ala., 268 F.3d 1014, 1022 (11 Cir. 2001); see also Jones v. Bock, 549 U.S. 199, th

215, 127 S. Ct. 910, 920-21, 166 L. Ed. 2d 798 (2007) (explaining, for example, that

if a complaint’s allegations show that relief is barred by the applicable statute of

limitations, the complaint is subject to dismissal for failure to state a claim).

A district court reviewing a complaint under § 1915(e) may consider not only

the complaint but also the exhibits attached to it. See Grossman v. Nationsbank, N.A.,

225 F.3d 1228, 1231 (11 Cir. 2000) (“When considering a motion to dismiss, all

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facts set forth in the plaintiff’s complaint are to be accepted as true and the court

limits its consideration to the pleadings and exhibits attached thereto.”) (quotation

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marks omitted); see also Brooks v. Blue Cross and Blue Shield of Fla., Inc., 116 F.3d

1364, 1368 (11 Cir. 1997) (“"[T]he analysis of a 12(b)(6) motion islimited primarily th

to the face of the complaint and attachments thereto.”). “Where there is a conflict

between allegations in a pleading and exhibits thereto, it is well settled that the

exhibits control.” Tucker v. Nat’l Linen Serv. Corp., 200 F.2d 858, 864 (5 Cir. th

1953).

First Amendment Retaliation 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 (11 Cir. 2003). First Amendment retaliation claims arising in the prison th

context are analyzed under the three-part test articulated in Smith v. Mosley, 532 F.3d

1270, 1276 (11 Cir. 2008). The inmate must establish: “(1) his speech was th

constitutionally protected; (2) he suffered adverse action such that the [official’s]

allegedly retaliatory conduct would likely deter a person of ordinary firmness from

engaging in such speech; and (3) there is a causal relationship between the retaliatory

action . . . and the protected speech.” Id. at 1276. Mere “general attacks” upon a

defendant’s motivations are insufficient – the plaintiff must articulate “affirmative

evidence” of retaliation to prove the requisite motive. Crawford-El v. Britton, 523

U.S. 574, 600, 118 S. Ct. 1584, 140 L. Ed. 2d 759 (1998) (citations omitted).

Accepting plaintiff’s allegations and documentary evidence as true, defendant

Babcock expressed awareness of plaintiff’s grievance, advised plaintiffthat he would

soon be out of “this place,” and referred plaintiff to the DSCC Administrator for

transfer after the SIS Department conducted a threat assessment and recommended

that plaintiff be transferred. Neither the sequence of events, nor the events

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themselves plausibly infer a retaliatory motive. To the contrary, plaintiff’s exhibits

establish that defendant Babcock’s decisions were based on the SIS Department’s

investigation, assessment and recommendation. 

Plaintiff argues that Babcock’s consideration of the cellular phone incident

could only have been motivated by retaliation because BOP policy prohibited

Babcock from referencing the incident. (Doc. 5, pp. 7-8). Plaintiff is wrong. The

regulation plaintiff cites for this principle, 28 C.F.R. § 541.17(i), does not exist. The

Court has reviewed the Bureau of Prisons’ policies. The pertinent policy provides:

If the DHO expunges an incidentreport, unitstaff must ensure the

inmate’s central file does not include the incident report and/or related

documents. 

Referencesto significant prohibited acts that are not supported by

disciplinary actions and hearing may not be used by the Bureau in ways

that have an adverse impact on an inmate, specifically the forfeiture or

disallowance of good time, good conduct time, or a parole

recommendation. Staff may maintain such references in an inmate’s

central file for use in making classification, administrative transfer, and

other decisions if the following conditions are met:

! References in an inmate’s central file must be maintained

accurately. For example, an inmate suspected of being involved in an

escape attempt who was never found to have violated disciplinary

regulations or was never charged due to lack of evidence would have to

have the lack of evidence noted in any reference to alleged involvement

in the escape attempt.

U.S. Dep’t of Justice, Fed. Bureau of Prisons, Program Statement No. 5270.09, p. 34

(2011). Defendant Babcock was expressly authorized to reference the incident in

connection with the classification and administrative transfer referral. As plaintiff’s

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allegations and exhibits fail to raise a plausible inference of retaliation, plaintiff’s

First Amendment claim should be dismissed. 

Equal Protection Claim

Plaintiff claims that defendant Babcock’s referral of plaintiff to the DSCC

Administrator violated the Equal Protection Clause and BOP Program Statement

1040.04, because Babcock did not refer Inmates Gaines and McClendon. The Equal

Protection Clause requires that the government treat similarly situated people in a

similar manner. See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439, 105

S. Ct. 3249, 3254, 87 L. Ed. 2d 313 (1985). “To establish an equal protection claim,

a prisoner must demonstrate that (1) ‘he issimilarly situated with other prisoners who

received’ more favorable treatment; and (2) his discriminatory treatment was based

on some constitutionally protected interest, such as race.” Jones v. Ray, 279 F.3d

944, 946-47 (11 Cir. 2001) (quoting Damiano v. Fla. Parole & Prob. Comm'n, 785

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F.2d 929, 932-33 (11 Cir. 1986)). BOP Program Statement 1040.04 states: “Bureau th

staff shall not discriminate against inmates on the basis of race, religion, national

origin, sex, disability, or political belief. This includes the making of administrative

decisions and providing access to work, housing and programs.” 

Plaintiff’s allegations fail to state a plausible equal protection claim, because

plaintiff does not suggest Babcock discriminated against him on the basis of a

constitutionally protected interest such as race. Plaintiff’s claim fares no better even

if construed as attempting to plead a “class of one” equal protection claim. The

Supreme Court has recognized “class of one” equal protection claims where a

plaintiff asserts that he was irrationally discriminated against on an individual basis,

rather than as a member of a particular group. Village of Willowbrook v. Olech, 528

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U.S. 562, 564, 120 S. Ct. 1073, 1074, 145 L. Ed. 2d 1060 (2000). A plaintiff can

establish a “class of one” claim by showing that he was “intentionally treated

differently from others similarly situated and that there is no rational basis for the

difference in treatment.” Id. at 564, 120 S. Ct. at 1074. “To be ‘similarly situated,’ the

comparators must be prima facie identical in all relevant respects.” Grider v. City of

Auburn, Ala., 618 F.3d 1240, 1264 (11 Cir. 2010) (quotation and emphasis omitted). 

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The attachments to plaintiff’s complaint demonstrate that plaintiff was not identical

to Gaines and McClendon, because the cell phone and charger were found in

plaintiff’s shoe and mattress, not theirs.

Accordingly, it is respectfully RECOMMENDED:

1. That plaintiff’s amended civil rights complaint (doc. 5) be DISMISSED

WITH PREJUDICE under 28 U.S.C. § 1915(e)(2)(b)(ii), for failure to state a claim

upon which relief may be granted.

2. That the clerk be directed to close the file.

At Pensacola, Florida this 30th day of December, 2011.

/s/Charles J. Kahn, Jr.

CHARLES J. KAHN, JR.

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

Any objections to these proposed findings and recommendations must be filed within

fourteen (14) days after being served a copy hereof. Any different deadline that may

appear on the electronic docket is for the court's internal use only, and does not

control. A copy of any objections shall be served upon any other parties. Failure to

object may limit the scope of appellate review of factual findings. See 28 U.S.C. §

636; United States v. Roberts, 858 F.2d 698, 701 (11 Cir. 1988). th

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