Case: 17-13355 Date Filed: 06/18/2018 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 17-13355 Non-Argument Calendar ________________________
D.C. Docket No. 2:14-cv-14177-DMM
GLENN C. SMITH,
Plaintiff-Appellant,
versus
MICHAEL D. CREWS, Secretary, Florida Department of Corrections, in his Official and Individual Capacities, SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
Defendants-Appellees.
________________________
Appeal from the United States District Court for the Southern District of Florida ________________________
(June 18, 2018) Case: 17-13355 Date Filed: 06/18/2018 Page: 2 of 7
Before WILLIAM PRYOR, ANDERSON, and EDMONDSON, Circuit Judges.
PER CURIAM:
Plaintiff Glenn Smith, a state prisoner proceeding pro se,1 appeals the
district court’s grant of summary judgment in this civil action, filed pursuant to 42
U.S.C. § 1983. Plaintiff alleges he was transferred from Martin Correctional
Institution (“Martin CI”) to Hardee Correctional Institution (“Hardee CI”) in
retaliation for his filing grievances: he claims a violation of his First Amendment
rights. No reversible error has been shown; we affirm. 2
We review de novo the district court’s grant of summary judgment.
Crawford v. Carroll, 529 F.3d 961, 964 (11th Cir. 2008). Summary judgment is
appropriate only when the record shows that no genuine issue exists on any
material fact and that the moving party is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(a). We view the facts and draw all reasonable inferences in the
1 We construe liberally pro se pleadings. Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998). 2 Plaintiff filed this civil action against Michael Crews, the Secretary of the Florida Department of Corrections (“FDC”), in both his official and individual capacities. Julie Jones (Crews’s successor) was later substituted as the named defendant for Plaintiff’s official-capacity claim. Plaintiff concedes that neither Defendant was involved personally in his transfer. Plaintiff asserts, instead, that Defendants are liable based on a theory that the FDC has a policy or pattern of retaliatory prison transfers. 2 Case: 17-13355 Date Filed: 06/18/2018 Page: 3 of 7
light most favorable to the non-moving party. Burton v. City of Belle Glade, 178
F.3d 1175, 1187 (11th Cir. 1999).
“The First Amendment forbids prison officials from retaliating against
prisoners for exercising the right of free speech.” Farrow v. West, 320 F.3d 1235,
1249 (11th Cir. 2003). To prove a First Amendment retaliation claim, an inmate
must prove three elements: (1) his speech was constitutionally protected, (2) he
suffered an adverse action that would likely deter a person of ordinary firmness
from engaging in such speech, and (3) a causal relationship between the protected
speech and the retaliatory action. Smith v. Mosley, 532 F.3d 1270, 1276 (11th Cir.
2008). An inmate exercises his First Amendment rights when he complains to
prison administrators about the conditions of his confinement. Id.
In determining whether a causal connection exists, we consider “whether the
defendants were subjectively motivated to discipline because [the inmate]
complained of some of the conditions of his confinement.” Id. at 1278.
Defendants are entitled to summary judgment if they can demonstrate that they
“would have taken the same action in the absence of the protected activity.” Id.
(quotation omitted).
Briefly stated, this appeal arises from these facts, viewed in the light most
favorable to Plaintiff. On 7 July 2010, Plaintiff reported to prison officials that he
had been beaten by his cellmate and submitted a written request for protection.
3 Case: 17-13355 Date Filed: 06/18/2018 Page: 4 of 7
Plaintiff was then placed in administrative confinement pending the outcome of an
investigation into Plaintiff’s allegations.
After a hearing, the prison’s Institutional Classification Team (“ICT”)
determined that a verifiable threat existed to Plaintiff’s safety and that Plaintiff was
in need of protection. Because prison officials had been unable to determine with
certainty the identity of Plaintiff’s attacker, and because prison officials thought it
likely Plaintiff would be subjected to future attacks if he was returned to the
general population, the ICT recommended Plaintiff be transferred for his own
protection. Plaintiff was transferred to Hardee CI on 27 July 2010.
Plaintiff alleges he was transferred in retaliation for his filing grievances.
The record demonstrates that Plaintiff filed a total of 642 grievances during his 5-
year tenure at Martin CI: 113 of these grievances were filed within the 6 months
leading up to Plaintiff’s transfer. Defendants, meanwhile, contend that Plaintiff
was transferred based on a legitimate penological interest: Plaintiff’s safety.
We agree with the district court’s determination that Plaintiff failed to
demonstrate a causal link between his filing of grievances and his prison transfer.
Plaintiff has produced no direct evidence of a retaliatory motive. Plaintiff points,
instead, to what he says constitutes circumstantial evidence of retaliation. On
appeal, Plaintiff contends that a retaliatory motive could be inferred from these
things: (1) that prison officials failed to consider Plaintiff’s liberty interest in being
4 Case: 17-13355 Date Filed: 06/18/2018 Page: 5 of 7
incarcerated close to his county of commitment; (2) that Plaintiff was placed
involuntarily in administrative confinement after reporting the attack and
requesting protection; (3) that not all inmate victims are transferred; (4) that
Plaintiff could have been placed in a protective management unit at Martin CI; (5)
that Plaintiff’s alleged attacker was not disciplined; (6) that Plaintiff’s transfer
interfered with his participation in a mental health program; and (7) that Plaintiff’s
transfer interfered with Plaintiff’s pending grievances about a cell transfer and with
Plaintiff’s pending state and federal court cases.
First, we reject Plaintiff’s assertion that he has a liberty interest in being
incarcerated at the FDC institution closest to his county of commitment. The
Supreme Court has concluded that inmates have no constitutionally protected
liberty interest against being transferred to another institution. Meachum v. Fano,
427 U.S. 215, 223-24 (1976) (the transfer of state inmates between prisons
implicates no liberty interest within the meaning of the Due Process Clause). In
addition, the Florida statutes upon which Plaintiff relies -- Fla. Stat. §§ 20.315(3)
and 944.611 -- create no statutorily-protected liberty interest. These statutes
provide only that it is “desirable” for inmates to be confined in a facility close to
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Case: 17-13355 Date Filed: 06/18/2018 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 17-13355 Non-Argument Calendar ________________________
D.C. Docket No. 2:14-cv-14177-DMM
GLENN C. SMITH,
Plaintiff-Appellant,
versus
MICHAEL D. CREWS, Secretary, Florida Department of Corrections, in his Official and Individual Capacities, SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
Defendants-Appellees.
________________________
Appeal from the United States District Court for the Southern District of Florida ________________________
(June 18, 2018) Case: 17-13355 Date Filed: 06/18/2018 Page: 2 of 7
Before WILLIAM PRYOR, ANDERSON, and EDMONDSON, Circuit Judges.
PER CURIAM:
Plaintiff Glenn Smith, a state prisoner proceeding pro se,1 appeals the
district court’s grant of summary judgment in this civil action, filed pursuant to 42
U.S.C. § 1983. Plaintiff alleges he was transferred from Martin Correctional
Institution (“Martin CI”) to Hardee Correctional Institution (“Hardee CI”) in
retaliation for his filing grievances: he claims a violation of his First Amendment
rights. No reversible error has been shown; we affirm. 2
We review de novo the district court’s grant of summary judgment.
Crawford v. Carroll, 529 F.3d 961, 964 (11th Cir. 2008). Summary judgment is
appropriate only when the record shows that no genuine issue exists on any
material fact and that the moving party is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(a). We view the facts and draw all reasonable inferences in the
1 We construe liberally pro se pleadings. Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998). 2 Plaintiff filed this civil action against Michael Crews, the Secretary of the Florida Department of Corrections (“FDC”), in both his official and individual capacities. Julie Jones (Crews’s successor) was later substituted as the named defendant for Plaintiff’s official-capacity claim. Plaintiff concedes that neither Defendant was involved personally in his transfer. Plaintiff asserts, instead, that Defendants are liable based on a theory that the FDC has a policy or pattern of retaliatory prison transfers. 2 Case: 17-13355 Date Filed: 06/18/2018 Page: 3 of 7
light most favorable to the non-moving party. Burton v. City of Belle Glade, 178
F.3d 1175, 1187 (11th Cir. 1999).
“The First Amendment forbids prison officials from retaliating against
prisoners for exercising the right of free speech.” Farrow v. West, 320 F.3d 1235,
1249 (11th Cir. 2003). To prove a First Amendment retaliation claim, an inmate
must prove three elements: (1) his speech was constitutionally protected, (2) he
suffered an adverse action that would likely deter a person of ordinary firmness
from engaging in such speech, and (3) a causal relationship between the protected
speech and the retaliatory action. Smith v. Mosley, 532 F.3d 1270, 1276 (11th Cir.
2008). An inmate exercises his First Amendment rights when he complains to
prison administrators about the conditions of his confinement. Id.
In determining whether a causal connection exists, we consider “whether the
defendants were subjectively motivated to discipline because [the inmate]
complained of some of the conditions of his confinement.” Id. at 1278.
Defendants are entitled to summary judgment if they can demonstrate that they
“would have taken the same action in the absence of the protected activity.” Id.
(quotation omitted).
Briefly stated, this appeal arises from these facts, viewed in the light most
favorable to Plaintiff. On 7 July 2010, Plaintiff reported to prison officials that he
had been beaten by his cellmate and submitted a written request for protection.
3 Case: 17-13355 Date Filed: 06/18/2018 Page: 4 of 7
Plaintiff was then placed in administrative confinement pending the outcome of an
investigation into Plaintiff’s allegations.
After a hearing, the prison’s Institutional Classification Team (“ICT”)
determined that a verifiable threat existed to Plaintiff’s safety and that Plaintiff was
in need of protection. Because prison officials had been unable to determine with
certainty the identity of Plaintiff’s attacker, and because prison officials thought it
likely Plaintiff would be subjected to future attacks if he was returned to the
general population, the ICT recommended Plaintiff be transferred for his own
protection. Plaintiff was transferred to Hardee CI on 27 July 2010.
Plaintiff alleges he was transferred in retaliation for his filing grievances.
The record demonstrates that Plaintiff filed a total of 642 grievances during his 5-
year tenure at Martin CI: 113 of these grievances were filed within the 6 months
leading up to Plaintiff’s transfer. Defendants, meanwhile, contend that Plaintiff
was transferred based on a legitimate penological interest: Plaintiff’s safety.
We agree with the district court’s determination that Plaintiff failed to
demonstrate a causal link between his filing of grievances and his prison transfer.
Plaintiff has produced no direct evidence of a retaliatory motive. Plaintiff points,
instead, to what he says constitutes circumstantial evidence of retaliation. On
appeal, Plaintiff contends that a retaliatory motive could be inferred from these
things: (1) that prison officials failed to consider Plaintiff’s liberty interest in being
4 Case: 17-13355 Date Filed: 06/18/2018 Page: 5 of 7
incarcerated close to his county of commitment; (2) that Plaintiff was placed
involuntarily in administrative confinement after reporting the attack and
requesting protection; (3) that not all inmate victims are transferred; (4) that
Plaintiff could have been placed in a protective management unit at Martin CI; (5)
that Plaintiff’s alleged attacker was not disciplined; (6) that Plaintiff’s transfer
interfered with his participation in a mental health program; and (7) that Plaintiff’s
transfer interfered with Plaintiff’s pending grievances about a cell transfer and with
Plaintiff’s pending state and federal court cases.
First, we reject Plaintiff’s assertion that he has a liberty interest in being
incarcerated at the FDC institution closest to his county of commitment. The
Supreme Court has concluded that inmates have no constitutionally protected
liberty interest against being transferred to another institution. Meachum v. Fano,
427 U.S. 215, 223-24 (1976) (the transfer of state inmates between prisons
implicates no liberty interest within the meaning of the Due Process Clause). In
addition, the Florida statutes upon which Plaintiff relies -- Fla. Stat. §§ 20.315(3)
and 944.611 -- create no statutorily-protected liberty interest. These statutes
provide only that it is “desirable” for inmates to be confined in a facility close to
the inmate’s permanent residence or county of commitment “in order to lessen the
transportation expense to the public.” Nothing in this statutory language can be
construed as conferring a right on inmates to be confined at a particular facility.
5 Case: 17-13355 Date Filed: 06/18/2018 Page: 6 of 7
About the prison’s decision-making process, the record demonstrates that
the steps prison officials took in response to Plaintiff’s request for protection --
including placing Plaintiff in administrative confinement, determining whether
Plaintiff was in need of protection, and deciding to transfer Plaintiff -- were
consistent with regulations governing prison safety and security. See Fla. Admin.
Code §§ 33-602.220(3)(c) (setting forth administrative procedures in response to
an inmate’s request for protection). Once a determination was made that Plaintiff
was in need of protection, prison officials were authorized to order Plaintiff’s
transfer. See id. § 33-602.220(3)(c)(5). Although Plaintiff contends generally that
he could have been placed in a protective management unit at Martin CI instead of
being transferred, he has failed to produce evidence sufficient to show he was
eligible for placement in a protective management unit. See id. § 33-
602.220(3)(c)(3) (listing eligibility criteria for protective management).
Viewing the record in the light most favorable to Plaintiff, Plaintiff has
failed to produce evidence sufficient either to demonstrate a retaliatory motive or
to rebut Defendants’ proffered reason for the transfer. Moreover, because the
undisputed evidence demonstrates that the decision to transfer Plaintiff would have
been the same even if Plaintiff had filed no grievances, the district court committed
no error in granting Defendants’ motion for summary judgment. See Mosley, 532
F.3d at 1278.
6 Case: 17-13355 Date Filed: 06/18/2018 Page: 7 of 7
Plaintiff also argues that summary judgment was granted prematurely
because the district court had not yet ruled on Plaintiff’s objections to the
magistrate judge’s denial of certain discovery requests. Because Plaintiff’s
discovery requests were pertinent only to whether the FDC had an alleged policy
or custom of retaliatory transfers -- and not to whether Plaintiff was transferred
unlawfully in this case -- the district court committed no error in ruling on
Defendants’ motion for summary judgment.
The district court also abused no discretion in denying Plaintiff’s request for
court-appointed counsel. Civil litigants in a section 1983 action have no absolute
constitutional right to counsel. Dean v. Barber, 951 F.2d 1210, 1216 (11th Cir.
1992). And Plaintiff has demonstrated no exceptional circumstances justifying
court-appointed counsel: the facts and legal issues involved in Plaintiff’s case are
not “so novel or complex as to require the assistance of a trained practitioner.” See
id.
AFFIRMED.