Michael J. Wappler v. Wayne Ivey

• Court: Court of Appeals for the Eleventh Circuit
• Decided: July 8, 2024
• Docket: 22-13418
• Status: Unpublished

Opinion

USCA11 Case: 22-13418 Document: 47-1 Date Filed: 07/08/2024 Page: 1 of 39

[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

____________________

No. 22-13418 Non-Argument Calendar ____________________

MICHAEL J. WAPPLER, Plaintiff-Counter Defendant-Appellant, versus WAYNE IVEY,

Defendant-Counter Claimant-Appellee,

MICHAEL HATTON, DEPUTY BISBEE, EVELYN DENARDO, K. DAVIS, Deputy, et al., USCA11 Case: 22-13418 Document: 47-1 Date Filed: 07/08/2024 Page: 2 of 39

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Defendants-Appellees,

DEPUTY SHERIFF "Chief",

Defendant.

Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 6:19-cv-01224-CEM-EJK ____________________

Before ROSENBAUM, GRANT, and LAGOA, Circuit Judges. PER CURIAM: Michael Wappler, proceeding pro se, appeals the district court’s grant of summary judgment in favor of Brevard County and the sheriff of Brevard County (collectively, the “defendants”) on Wappler’s 42 U.S.C. § 1983 civil rights claim. Wappler argues that the district court erred by: (1) granting summary judgment in favor of the defendants because the court found that the conditions of Wappler’s confinement did not violate his constitutional rights; (2) granting summary judgment for the defendants on Wappler’s due process and retaliation claims because the court found that jail of- ficials did not engage in retaliatory conduct and Wappler’s due USCA11 Case: 22-13418 Document: 47-1 Date Filed: 07/08/2024 Page: 3 of 39

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process rights were not violated; (3) granting summary judgment in favor of the sheriff in his official capacity on the sheriff’s coun- terclaim for liquidated damages pursuant to Fla. Stat. §§ 960.293 and 960.297 because the court found that Wappler did not dispute the counterclaim; and (4) denying Wappler’s motion for leave to file a second amended complaint. For the reasons set forth below, we affirm the district court’s order as to issues one, two, and four. As to issue three, we vacate the order and remand for further pro- ceedings. I. FACTUAL & PROCEDURAL BACKGROUND On April 5, 2019, Wappler filed a pro se § 1983 complaint in state court against (1) Wayne Ivey, then a sheriff of Brevard County, (2) Michael Hatton, who was employed by the Brevard County Jail (the “jail”), and (3) Deputy Bisbee, who was a deputy at the jail. On July 3, 2019, Ivey, Hatton, and Bisbee filed a notice of removal. On September 12, 2019, Wappler filed an amended pro se § 1983 complaint against Brevard County (the “County”) as well as Ivey and other officers, including Hatton, Bisbee, Evelyn DeNardo, Deputy K. Davis, Deputy Davenport, Corporal Banks, “Chief Dep- uty Sheriff,” and “Sgt. 695” (collectively, the “officers”) in their in- dividual and official capacities. Wappler brought claims based on the conditions of his confinement and the officers’ retaliatory con- duct during his time at the jail as a pretrial detainee from Novem- ber 7, 2017, to May 1, 2019. He alleged that his First, Eighth, and Fourteenth Amendment rights, as well as his due process rights, USCA11 Case: 22-13418 Document: 47-1 Date Filed: 07/08/2024 Page: 4 of 39

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were violated. He alleged that the County and Ivey were deliber- ately indifferent to his rights not to be punished as a pretrial de- tainee. He also alleged that the County’s and Ivey’s “procedures, customs, and practices,” including inadequate funding of the jail, caused the deprivation of his constitutional rights. As to his conditions-of-confinement claims, Wappler alleged the following facts. The County was responsible for “adequately fund[ing]” Ivey and the sheriff’s office to avoid overcrowding in the jail. On November 8, 2017, Wappler was “placed in [the] Unit 501 bubble,” which he described as an “intake ‘overflow’ cell,” partially due to “overcrowding.” The conditions in the bubble—caused by the County and Ivey’s policies, practices, and customs— were “in- humane.” In the bubble, Wappler was placed in an overcrowded strip cell where eight men shared one open toilet and he was forced to sleep on the “cold filthy concrete floor” without a bunk or mat- tress. He did not have a chair or table, eating utensils, shoes, or socks. And though he was provided a blanket and a uniform, he was without underwear, a towel, and hygiene items. He was “co-mingled with sentenced and mentally ill” individuals; he was denied a Bible, reading and writing materials, and legal documents; and he was exposed to “excessive noise and light 24/7.” He could not shower or shave, he did not have toilet paper, and he was de- nied any time out of the cell for fresh air. On November 14, 2017, he was transferred to an overcrowded cell in the “Charlie Unit,” where he was subjected to “triple bunking” that exceeded the per- missible capacity of the space. USCA11 Case: 22-13418 Document: 47-1 Date Filed: 07/08/2024 Page: 5 of 39

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Wappler also alleged the following. From November 18, 2017, to May 1, 2019, he was “moved to other various cells/pods all identical, where [he] was subjected to being ‘triple bunked’” in cells designed for a single person. The extremely noisy conditions in overcrowded rooms caused “ringing in the ears,” headaches, and anxiety. In total, the various issues during his detention included: (1) “triple bunking”; (2) noisy and overcrowded conditions; (3) be- ing confined with “sentenced prisoners”; (4) being “locked-down in excess of [11] hours per day”; (5) “filthy cells” with no sanitation supplies; (6) the lack of shoes or adequate footwear, resulting in “toenail damage from fungus”; (7) “sensory deprivation” condi- tions because of the blacked-out jail windows; and (8) the lack of recreation, fresh air, and sunshine. As to his retaliation claims, Wappler alleged the following facts. In November 2017, he began filing “grievances and civil ac- tions” to “redress” the wrongs being committed at the jail. After Ivey, Hatton, and DeNardo learned of Wappler’s complaints, sev- eral defendants took retaliatory actions against him. “[W]ithin days” of filing one of his grievances, Wappler was placed in “disci- plinary confinement” even though he “violated no rules.” The next day, April 16, 2018, Deputy Bisbee gave him an incident report that falsely charged him with misconduct. During a hearing held for this incident report, he could “not hear fully defendants’ reading of a statement,” was not allowed to read the statement, and was not provided with either a video or statements that Hatton and Bisbee mentioned. He was found “guilty” and had to serve another 15 days in “punitive confinement.” On “Good Friday” in 2019 (a USCA11 Case: 22-13418 Document: 47-1 Date Filed: 07/08/2024 Page: 6 of 39

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few days after the hearing), DeNardo and two other officers falsely charged Wappler with misconduct after he helped another inmate, “Mr. Silvestri,” submit a grievance. During that interaction, De- Nardo told Wappler, “[Y]ou were seen on the kiosk writing a griev- ance[.] My bosses Ivey and I [sic] we don’t want no paralegal office in this jail.” When Wappler asked for a copy of the written narra- tive to support the disciplinary report, Davenport refused to give him a copy and Davis told him to “get [it] from public records.” Wappler was again placed in disciplinary confinement after being found “guilty” by Davis. Wappler alleged that the constitutional violations resulted in the following injuries: permanent damage to his hearing, anxi- ety, sleep disturbance, and emotional distress. He sought compen- satory and punitive damages and a “no contact” order against the individually named defendants. He also attached a drawing of a cell, showing that there was a bunk bed against one wall of the cell and a singular cot against the opposite wall, totaling to three beds in that one cell. Ivey and the officers moved to dismiss Wappler’s amended complaint, and the motion clarified certain names of the parties in Wappler’s amended complaint as follows: “Deputy K. Davis” was Christine Davis, “Chief Deputy Sheriff,” was Michael DeMorat, and “Sgt. 695” was James Cochran.1 The County also moved to dismiss the amended complaint. Wappler opposed both motions.

1 From here on, we reference “Cochran” instead of “Sgt. 695 USCA11 Case: 22-13418 Document: 47-1 Date Filed: 07/08/2024 Page: 7 of 39

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The district court granted in part and denied in part Ivey’s and the officers’ motion to dismiss. The court dismissed the case as to Ivey and the officers in their official capacities because Ivey in his official capacity already represented the County, and thus any allegations against Ivey in his official capacity operated as allega- tions against the County. The court also dismissed the case with prejudice as to DeMorat for failure to state a claim. The court de- nied the motion in all other respects, and it denied the County’s motion to dismiss. The County, Ivey, and the officers answered Wappler’s amended complaint, denying Wappler’s allegations that his consti- tutional rights were violated and asserting affirmative defenses. Ivey, in his official capacity as the sheriff, further asserted a counterclaim for incarceration costs as liquidated damages under Florida Statute §§ 960.293 and 960.297. Ivey asserted that on April 22, 2019, Wappler entered a guilty plea in Brevard County state court and was sentenced to 60 months’ imprisonment, such that Ivey was entitled to liquidated damages—calculated at $50 per day pursuant to section 960.293(2)(b)—in the amount of $91,250. Wappler answered Ivey’s counterclaim, asserting that he had not served his 60-month sentence yet, so the total amount al- leged by Ivey was “fraudulent,” “premature,” and “unenforceable.” He argued that the counterclaim was filed to retaliate against him for filing his amended complaint, the district court had no jurisdic- tion over the counterclaim, Ivey abandoned this claim by failing to raise it first before the state court, and the counterclaim would USCA11 Case: 22-13418 Document: 47-1 Date Filed: 07/08/2024 Page: 8 of 39

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“invalidate” his plea agreement and constitute “double jeopardy.” He also asserted that Ivey did not have standing to bring forth the counterclaim, Ivey would be unjustly enriched for housing him in unconstitutional conditions of confinement, Ivey was selectively enforcing the statute in an unconstitutional way, and the counter- claim would have a prejudicial effect on the jury. He asked the district court to “abstain from exercising supplemental jurisdiction over the counterclaim, or alternatively dismiss it with prejudice” because the counterclaim was filed for “improper purposes.” On March 1, 2021, Wappler moved to file a second amended complaint because Ivey’s discovery disclosure “significantly and materially alter[ed] factual allegations and provided the names and employment positions of persons responsible for [the] constitu- tional violations at bar.” Wappler sought leave to include addi- tional allegations against Cochran, Davis, and Hatton about their roles in the disciplinary proceedings because he did not use their proper names in his original complaint. Wappler also asked to in- clude additional disciplinary records and “add the two supervisors personally responsible for approving and or failing to release Plain- tiff from the illegal punitive confinement.” He also sought to add “previously unknown facts” about the County’s fire inspection re- port, statistics about the number of prisoners, and the definition of overcrowding, and to add the jail’s consent decree, population numbers, and capacity. And Wappler requested leave to assert new claims under the First Amendment “on behalf of other” and the Religious Land Use and Institutionalized Persons Act USCA11 Case: 22-13418 Document: 47-1 Date Filed: 07/08/2024 Page: 9 of 39

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(“RLUIPA”), “resulting from the denial of religious visits set forth in paragraphs 27-30 of the operative complaint.” The County, Ivey, and the officers responded jointly, oppos- ing Wappler’s motion to amend. They asserted that the parties had been proceeding under his amended complaint for almost a year and a half and argued that the district court should deny his request to add claims under the RLUIPA and First Amendment for undue delay and as futile. The district court denied Wappler’s motion for leave to file a second amended complaint, finding that Wappler offered no good reason why he could not have brought the RLUIPA and First Amendment claims earlier, he failed to set forth any factual allega- tions to support the essential elements of either claim, and he failed to identify the parties against whom he intended to assert either claim. The district court determined that Wappler’s operative amended complaint already alleged that Davis and Hatton were personally responsible for the alleged misconduct during discipli- nary proceedings and thus any other claims about their roles in those proceedings would not be new. It further found that he did not set forth the positions of the unnamed two supervisors who were responsible for his “illegal punitive confinement” and how they were responsible, and thus, his allegations did not establish a cause of action. Lastly, the district court found that Wappler did not demonstrate good cause to file a second amended complaint. USCA11 Case: 22-13418 Document: 47-1 Date Filed: 07/08/2024 Page: 10 of 39

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Ivey and the officers later moved for summary judgment in their favor,2 and the County did the same. The County asserted that Wappler presented no evidence showing that he was “triple- bunked” for purposes of punishing him for no legitimate reason, considering that Wappler’s drawing from his amended complaint showed a typical cell that was sufficient to accommodate three peo- ple. It contended that Wappler’s complaint that he was placed with dangerous felons was misleading because the fact that he was housed at times with people who had a criminal history was unsur- prising, and it did not amount to punishment under § 1983. It as- serted that his complaints of not having comforts such as a chair, a table, utensils, shoes, socks, reading materials, or television, did not amount to punishment. The County argued that, though Wap- pler’s chief complaint seemed to be that the jail was too loud, and it might have contributed to hearing loss, he presented no evidence that the conditions of his confinement caused his alleged hearing loss, nor did he present evidence that he in fact suffered from hear- ing loss. It asserted that he presented no evidence that the condi- tions of his confinement caused his alleged toenail fungus, consid- ering that he testified that the jail was regularly cleaned, and that any unsanitary condition that he alleged did not amount to an un- lawful condition. Finally, it argued that the fact that Wappler’s

2 Ivey and the officers filed their original summary judgment motion and then,

one day later, an amended motion. When we refer to their motion, therefore, we mean the amended motion that the district court ultimately ruled on. USCA11 Case: 22-13418 Document: 47-1 Date Filed: 07/08/2024 Page: 11 of 39

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detention interfered with his desire to live as comfortably as possi- ble did not convert the conditions of his detention into punish- ment. The County also argued that even if Wappler showed evi- dence of a constitutional violation, he had no evidence that any of- ficial County policy, custom, or practice was “the moving force” behind any such violation. It asserted that he failed to show any evidence that the County had a policy, practice, or custom of failing to adequately fund the jail or Ivey, considering that the County of- fered evidence that it approved budget requests for the jail that Ivey submitted. It argued that he failed to point to any evidence show- ing any causal link between his claims of inadequate funding and his alleged constitutional violations, considering that the County and the sheriff in 1993 entered a final consent decree to avoid over- crowding the jail, and none of the factors that contributed to the overcrowding of the jail at the time related to the funding of the jail or the sheriff. In support of its motion for summary judgment, the County filed the following exhibits: (1) Wappler’s deposition; 3 (2) the County’s answers to Wappler’s first set of interrogatories, which included that it approved budget requests that Ivey submitted for the jail; (3) the order terminating the final consent decree in a

3 Because both the County’s motion for summary judgment and Ivey’s and

the officers’ amended motion for summary judgment cited Wappler’s deposi- tion, we summarize Wappler’s deposition below. USCA11 Case: 22-13418 Document: 47-1 Date Filed: 07/08/2024 Page: 12 of 39

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separate case, which showed that in 1993, the County and the sher- iff at the time entered a final consent decree not to operate the jail in excess of its overall capacity; (4) the report filed in that separate case, identifying the major factors that contributed to overcrowd- ing in the jail—none of which included inadequate funding; and (5) the County’s response to Wappler’s revised first set of interrogato- ries. Ivey and the officers, in their own motion, similarly argued that they were entitled to summary judgment on all Wappler’s claims. Ivey asserted that Wappler’s conditions-of-confinement claims against him failed because Wappler presented no evidence that he was triple-bunked for purposes of punishment for no legit- imate reason, and the practice of triple-bunking itself did not amount to a constitutional violation. Ivey asserted essentially the same arguments as the County regarding Wappler’s claims about placement with dangerous felons in the same cell, lack of access to certain comforts, exposure to noise, and exposure to unsanitary conditions. He asserted that there was no evidence that he had any personal involvement in these conditions and that Wappler failed to present any evidence of either a constitutional violation or a pol- icy or custom behind any alleged constitutional violation. Ivey fur- ther argued that he was entitled to summary judgment on his coun- terclaim for incarceration costs because Wappler entered a guilty plea and was sentenced to 60 months’ imprisonment and thus he was entitled to a total of $91,250 under Florida law. USCA11 Case: 22-13418 Document: 47-1 Date Filed: 07/08/2024 Page: 13 of 39

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The officers asserted that, as to Wappler’s retaliation claims, they were entitled to qualified immunity and summary judgment. They argued that there was video evidence to support the discipli- nary actions taken on both April 15, 2018, and April 19, 2019. The officers argued that they did not retaliate against Wappler, and they would have taken the same actions in the absence of his alleged prior protected activity. They argued that as to the April 15, 2018incident, the jail’s security video showed that Wappler, to- gether with another inmate, Michael Delso, faked a slip-and-fall in- cident in which Delso “fell” in a feigned spill on the floor, aided by Wappler. The officers pointed to the incident report, which re- counted that a third inmate, Richard Roberts, provided a recorded statement attesting that Delso planned the “fall” together with Wappler and another man in an effort to sue the County for civil damages. After conducting an investigation, the officers con- tended, Deputy Bisbee simply informed Wappler of charges brought against him, Hatton conducted the hearing and found him guilty, and Cochran reviewed and signed off the accuracy of the incident report. They argued that Wappler had shown no causal connection between any prior protected activity as far as complain- ing about jail conditions and the discipline he received for his part in this incident. As to the April 19, 2019disciplinary incident, the officers proffered a jail surveillance video showing that Wappler used an- other inmate, Silvestri’s, PIN code to submit a grievance on the jail kiosk system, a violation of jail rules. And, the officers pointed out, Wappler did not deny that he submitted a grievance on behalf of USCA11 Case: 22-13418 Document: 47-1 Date Filed: 07/08/2024 Page: 14 of 39

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Silvestri using Silvestri’s PIN. The officers contended that, even if Wappler had made a complaint about DeNardo shortly before sub- mitting this grievance, he would have been disciplined for using another inmate’s PIN regardless of any such prior protected activ- ity. They argued that Davenport, Davis, and Banks were only in- volved as to the routine carrying-out of the disciplinary process. They also argued that Wappler was provided a copy of each inci- dent report notifying him of the charges against him and hearings were conducted for each incident and thus his due process rights were not violated. In support of their amended motion for summary judgment, Ivey and the officers filed Wappler’s deposition; the affidavits of Bisbee, Cochran, DeNardo, Davenport, Davis, and Banks; and the videos of the incidents on April 15, 2018, and April 19, 2019. In Bisbee’s affidavit, she stated the following. On April 16, 2018, she notified Wappler of the nature of the accusations against him and documented that he wished to plead not guilty, that he had no witnesses on his behalf, and that he did not wish to make a statement before the hearing deputy. She had no other involve- ment in the incident. She did not retaliate against Wappler for his prior complaints or grievances made. She added that the same dis- ciplinary action would have been taken in the absence of any al- leged protected activity. In support of her affidavit, Bisbee attached the April 2018 in- cident report, Wappler’s signed “Violation Notification,” and the results of the disciplinary hearing. The April 2018 incident report USCA11 Case: 22-13418 Document: 47-1 Date Filed: 07/08/2024 Page: 15 of 39

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stated the following. On that date, Delso, an inmate in the Charlie Unit, claimed that he slipped and fell in “the pod” and could not get up. Delso claimed that he slipped on a wet floor even though the floor appeared to be dry. Officers helped Delso get back on his feet to take him to the medical center. Richard Roberts, an inmate, stated that Delso, Wappler, and another inmate, Rain Pipkins, planned the slip-and-fall in advance so that they could sue the Sher- iff’s Office. Roberts stated that Delso, Wappler, and Pipkins planned this slip-and-fall because Delso had a previous back injury, Wappler knew how to file the necessary paperwork, and Pipkins would provide a sworn statement. The video of the incident cor- roborated Roberts’s statement that the fall was planned because the video showed that the floor was “completely dry.” Delso was evaluated by a nurse who found that he had no injuries. Delso, Wappler, and Pipkins denied Roberts’s allegations. “Keep sepa- rates were placed against three inmates,” and “no force was used during this incident.” The pages of the incident report that included Wappler’s sig- nature showed that Wappler was charged with “encourag[ing] par- ticipat[ing]” as well as “conduct which disrupts” and that Wappler signed the incident report indicating that he understood the accu- sations against him, he understood the disciplinary actions that were taken, and he had the opportunity to call witnesses and pre- sent evidence. The disciplinary hearing results showed that Wap- pler was found guilty of all charges and he would be placed in dis- ciplinary confinement for 15 days. USCA11 Case: 22-13418 Document: 47-1 Date Filed: 07/08/2024 Page: 16 of 39

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Wappler responded to the County’s and Ivey’s and the offic- ers’ motions for summary judgment, opposing both motions in one response. 4 He objected to the use of the videos of the April 2018 and 2019 incidents, arguing that the videos were “inadmissible evidence” because he had not had the opportunity to study the vid- eos outside the presence of the officers’ attorneys. Wappler con- tended that he presented enough evidence to show a genuine issue of material fact as to the psychological harm he suffered from the conditions of confinement. He asserted that he showed that he suffered a physical injury from the unsanitary conditions of the jail because he sustained damage to his toenails from the fungal infec- tion that he contracted in the jail. He argued that Ivey’s policy or custom of taking pretrial detainees’ shoes and socks upon arrival to the jail and providing flip flops offered no protection, which led to him contracting the fungal infection. He insisted that he showed evidence that the County and Ivey violated his Fourteenth Amend- ment rights by creating inhumane conditions of confinement. Wappler also argued that he showed evidence that he sus- tained hearing loss because of the excessive noise caused by over- crowding. He asserted that he was subjected to inhumane condi- tions due to the lack of toilet paper, showers, towels, eating uten- sils, cleaning supplies, and hygiene items. He also asserted that a reasonable fact finder could find that the County and Ivey had a practice or custom of overcrowding and that a reasonable fact

4 Wappler characterized his second filing in response to the motions for sum-

mary judgment as “Part II” of the response he had filed. USCA11 Case: 22-13418 Document: 47-1 Date Filed: 07/08/2024 Page: 17 of 39

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finder could find that his Eighth Amendment rights had been vio- lated by the County’s policies and practices. In support of his opposition to the motions for summary judgment, Wappler filed the following exhibits: (1) his deposition; (2) a document labeled “Exhibit No. 2 not included” and “to be filed”; (3) an October 2019 chronological record of health from the Florida Department of Corrections (“FDOC”) in which he com- plained that he had ringing in his ears; (4) an FDOC medical staff’s consultation request dated March 13, 2020, in which the staff re- quested that Wappler get a hearing test; (5) an FDOC inmate sick- call request dated September 16, 2020, in which he requested med- ication for migraines; (6) an FDOC health services document dated September 17, 2020, showing that he had headaches and earaches; (7) two FDOC inmate sick-call requests—one dated November 20, 2020, and one dated December 1, 2020—in which he requested an audiologist for his tinnitus; (8) an FDOC inmate sick-call request dated March 8, 2021, in which he requested treatment for his lower back pain; (9) a hearing test report dated October 12, 2021, noting that his hearing loss was reportedly “too severe” to hear certain of the test-tones; (10) requests that Wappler submitted during his time at jail, showing that he informed the staff that he had ringing in his ears, tinnitus, and difficulty sleeping, that he wanted to move to a different cell because he did not have a bunk, and that he could not get his mail; and (11) a handwritten “declaration” from an in- mate named Patrick W. Wharen, who stated that he was a pretrial detainee at the jail and asserted complaints that were generally the same as the ones that Wappler asserted in his amended complaint. USCA11 Case: 22-13418 Document: 47-1 Date Filed: 07/08/2024 Page: 18 of 39

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Wappler also filed the following exhibits: (1) an inmate housing history report from the jail; (2) Ivey’s response to Wap- pler’s request for admissions; (3) an affidavit from a research asso- ciate at the FDOC, who could not locate certain monthly reports from the jail; (4) the County’s answers to Wappler’s first set of in- terrogatories; (5) the same drawing of the bunk placements in the cell that he attached to his amended complaint; (6) the April 2018 and April 2019 incident reports; (7) the grievances he filed during his time at the jail; (8) the jail’s inmate rules and regulations and disciplinary procedures; (9) an email from an officer stating that he could not locate the recording of Roberts’s statement as to the April 2018 incident; and (10) several handwritten “declaration[s]” or “af- fidavit[s]” from inmates, who stated that they were pretrial detain- ees at the jail and asserted complaints that were generally the same as Wappler’s. Ivey and the officers replied, reiterating the arguments from their amended motion for summary judgment and contending that Wappler failed to present evidence of unlawful conditions of con- finement and Ivey was entitled to summary judgment. They also argued that the videos of the April 2018 and April 2019 incidents were relevant and admissible. They argued that Wappler failed to present evidence to support the retaliation claims, and thus the of- ficers were entitled to summary judgment and qualified immunity. They also asserted that Wappler did not address the counterclaim in his response, and thus Ivey was entitled to summary judgment on the counterclaim. USCA11 Case: 22-13418 Document: 47-1 Date Filed: 07/08/2024 Page: 19 of 39

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The County replied to Wappler’s response, generally reiter- ating arguments made in its motion for summary judgment and arguing that it was entitled to summary judgment on all claims be- cause Wappler’s evidence was not sufficient to establish a cogniza- ble Eighth or Fourteenth Amendment claim under § 1983. The district court granted the County’s and Ivey’s and the officers’ motions for summary judgment, and the court dismissed Wappler’s case with prejudice. The court also noted that it had dismissed all claims against Ivey and the officers in their official ca- pacities. First, the district court found that, as to his allegations against Ivey, Wappler’s complaints concerned “nothing more than de minimis inconveniences that d[id] not constitute ‘punishment’ or otherwise rise to the level of constitutional violations.” The district court further made the following findings: as to Wappler’s allega- tions about triple bunking, mere overcrowding of a jail did not vi- olate the Fourteenth Amendment; Wappler did not show that the crowded conditions at the jail were maintained arbitrarily or pur- poselessly, and he presented no credible evidence from which an inference could fairly be drawn; Wappler failed to provide evidence to establish that the overcrowding led to deprivations of essential food, medical care, or sanitation, or increased violence among in- mates or other conditions intolerable for confinement; Wappler failed to demonstrate a violation of his constitutional rights regard- ing the alleged noisy conditions of the jail because he provided no evidence that his hearing loss was caused by such conditions, and USCA11 Case: 22-13418 Document: 47-1 Date Filed: 07/08/2024 Page: 20 of 39

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the noisy conditions he alleged were not beyond what would be expected of a typical prison environment; as to his alleged toenail fungal infection, Wappler provided no evidence about the extent of the injury or whether it was caused by the conditions of the jail; and he failed to show that he was denied life necessities or that he suffered unnecessary and wanton infliction of pain, and thus he did not have a viable Eighth Amendment claim. The district court also found that even if Wappler’s allega- tions against Ivey could create a genuine issue of material fact as to whether Wappler suffered a violation of his constitutional rights, Ivey was entitled to qualified immunity and entitled to summary judgment because Wappler had not shown that any of Ivey’s con- duct was objectively unreasonable. Second, as to Wappler’s allegations against the County, the district court found that Wappler could not establish that his con- stitutional rights were violated, which “alone mean[t] that his claims against [the County] fail[ed].” It explained that, while Wap- pler alleged that the County had a policy or custom of underfund- ing the jail, Wappler presented no evidence to show that the al- leged constitutional violations were a highly predictable conse- quence of the County’s failure to budget and adequately staff the jail. It also found that Wappler presented no evidence that the jail was underfunded to an extent that exhibited deliberate indifference to the jail’s safety and security or that the alleged problems could have been resolved with additional funding. It further found that Wappler failed to prove causation by demonstrating that the USCA11 Case: 22-13418 Document: 47-1 Date Filed: 07/08/2024 Page: 21 of 39

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County’s deliberate conduct was the moving force behind his al- leged injuries, and thus the County was entitled to summary judg- ment. Third, the district court found that as to Wappler’s retalia- tion claim against the officers, Wappler suffered adverse action in the form of disciplinary confinement because he violated the prison rules, not because of his earlier grievances. It found that his retali- ation claim failed because he was guilty of the charges resulting in the disciplinary harm at issue, and he was afforded adequate due process at the disciplinary hearings. It found that even if Wappler could show that the officers were subjectively motivated to disci- pline him because of his grievances, the record showed that the of- ficers would have taken the same disciplinary actions in the absence of his protected activity because he was found guilty of the discipli- nary charges. It found that Wappler provided “nothing factual to suggest a causal connection between the protected activity and the harm,” but only offered his own conclusory allegations, and there- fore the officers were entitled to summary judgment. Lastly, the district court also found that as to Ivey’s counter- claim, Wappler “ha[d] not disputed this matter,” and thus Ivey was entitled to summary judgment in the amount of $91,250, which was the total amount of the damages and losses for Wappler’s in- carceration costs and other correctional costs. Wappler timely appealed. II. STANDARD OF REVIEW USCA11 Case: 22-13418 Document: 47-1 Date Filed: 07/08/2024 Page: 22 of 39

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We review the grant of a summary judgment motion de novo. Kernel Records Oy v. Mosley, 694 F.3d 1294, 1300 (11th Cir. 2012). We “may affirm the judgment of the district court on any ground supported by the record, regardless of whether that ground was relied upon or even considered by the district court.” Id. at 1309. Summary judgment is appropriate when the record evi- dence shows that there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); see also Mosley, 694 F.3d at 1300. At summary judgment, although the district court must draw all reasonable in- ferences in favor of the nonmoving party, “inferences based upon speculation are not reasonable.” Mosley, 694 F.3d at 1301 (quoting Marshall v. City of Cape Coral, 797 F.2d 1555, 1559 (11th Cir. 1986)). “A genuine factual dispute exists only if a reasonable fact-finder ‘could find by a preponderance of the evidence that the plaintiff is entitled to a verdict.’” Id. at 1300 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)). Although we construe pro se pleadings liberally, “a pro se lit- igant does not escape the essential burden under summary judg- ment standards of establishing that there is a genuine issue as to a fact material to his case in order to avert summary judgment.” Brown v. Crawford, 906 F.2d 667, 670 (11th Cir. 1990). The nonmov- ing party may not rely solely on the pleadings to defeat a motion for summary judgment, but must rely on “affidavits, depositions, answers to interrogatories, and admissions [to] show that there are USCA11 Case: 22-13418 Document: 47-1 Date Filed: 07/08/2024 Page: 23 of 39

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specific facts demonstrating that there is a genuine issue for trial.” Id. Further, “[a] mere scintilla of evidence in support of the non- moving party will not suffice to overcome a motion for summary judgment.” Young v. City of Palm Bay, Fla., 358 F.3d 859, 860 (11th Cir. 2004). A party abandons an issue when he fails to raise it plainly and prominently on appeal. See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014); see also Irwin v. Hawk, 40 F.3d 347, 347 n.1 (11th Cir. 1994) (applying the same to a pro se litigant). Simply stating that an issue exists, without providing reasoning and citation to authority on which the appellant relies, precludes our consideration of that issue on appeal. Sapuppo, 739 F.3d at 681. III. ANALYSIS On appeal, Wappler argues that the district court erred by: (1) granting summary judgment for the defendants because the court found that the conditions of Wappler’s confinement did not violate his constitutional rights; (2) granting summary judgment for the defendants on Wappler’s due process and retaliation claims because the court found that jail officials did not engage in retalia- tory conduct and Wappler’s due process rights were not violated; (3) granting summary judgment in favor of the sheriff in his official capacity on the sheriff’s counterclaim for liquidated damages be- cause the court found that Wappler did not dispute the counter- claim; and (4) denying Wappler’s motion for leave to file a second amended complaint. We address each of his arguments in turn. A. Wappler’s Conditions-of-Confinement Claims USCA11 Case: 22-13418 Document: 47-1 Date Filed: 07/08/2024 Page: 24 of 39

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As an initial matter, Wappler has abandoned his claim on the conditions of his confinement because he fails to raise the issue plainly and prominently on appeal, and instead, he generally reas- serts the allegations from his amended complaint. Sapuppo, 739 F.3d at 681; Irwin, 40 F.3d at 347 n.1. Nonetheless, we conclude that the district court did not err by granting summary judgment on Wappler’s conditions-of-confinement claims in favor of Ivey and the County because the conditions of Wappler’s confinement did not violate his Fourteenth Amendment rights. “[T]o prevail on a civil rights action under § 1983, a plaintiff must show that he or she was deprived of a federal right by a per- son acting under color of state law.” Griffin v. City of Opa-Locka, 261 F.3d 1295, 1303 (11th Cir. 2001). “[C]onditions under which a pretrial detainee [is] held are reviewed under the Due Process Clause of the Fourteenth Amend- ment.” Jacoby v. Baldwin Cnty., 835 F.3d 1338, 1344 (11th Cir. 2016). “[I]n regard to providing pretrial detainees with such basic necessi- ties as food, living space, and medical care the minimum standard allowed by the due process clause is the same as that allowed by the [E]ighth amendment for convicted persons.” Hamm v. DeKalb Cnty., 774 F.2d 1567, 1574 (11th Cir. 1985). The restrictions and conditions of detention may not amount to punishment or other- wise violate the Constitution. Jacoby, 835 F.3d at 1344–45. But “[n]ot every disability imposed during pretrial detention amounts to ‘punishment’ in the constitutional sense.” Bell v. Wolfish, 441 U.S. 520, 537 (1979). “[T]he fact that such detention interferes with USCA11 Case: 22-13418 Document: 47-1 Date Filed: 07/08/2024 Page: 25 of 39

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the detainee’s understandable desire to live as comfortably as pos- sible and with as little restraint as possible during confinement does not convert the conditions or restrictions of detention into ‘punish- ment.’” Id. “Whether a condition of pretrial detention amounts to pun- ishment turns on whether the condition is imposed for the purpose of punishment or whether it is incident to some legitimate govern- ment purpose.” Jacoby, 835 F.3d at 1345 (alterations adopted) (quoting Magluta v. Samples, 375 F.3d 1269, 1273 (11th Cir. 2004)). “An expressed intent to punish on the part of detention facility of- ficials is sufficient, but not necessary, to establish unconstitutional pretrial punishment.” Id. (alterations adopted) (quoting Bell, 441 U.S. at 538). “A court also permissibly may infer that the purpose of the governmental action is punishment” if the “restriction or condition is not reasonably related to a legitimate goal—if it is ar- bitrary or purposeless.” Id. (alterations adopted) (quoting Bell, 441 U.S. at 539). “In assessing claims of unconstitutionally overcrowded jails, courts must consider the impact of the alleged overpopulation on the jail’s ability to provide such necessities as food, medical care, and sanitation.” Hamm, 774 F.2d at 1575. “‘[D]ouble-bunking’ (placing two inmates in a cell intended for one) does not constitute punishment.” Jacoby, 835 F.3d at 1345 (quoting Bell, 441 U.S. at 540- 43). In concluding in Bell that double-bunking did not amount to punishment, the Supreme Court considered the following factors: (1) the detainees only had to spend about seven or eight hours a USCA11 Case: 22-13418 Document: 47-1 Date Filed: 07/08/2024 Page: 26 of 39

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day in their room, during most or all of which they were presuma- bly sleeping; (2) the cells provided adequate space for sleeping; (3) the detainees were otherwise free to move between their rooms and the common area; and (4) nearly all detainees were released within 60 days. Bell, 441 U.S. at 543. “The fact that [a detainee] temporarily had to sleep upon a mattress on the floor or on a table is not necessarily a constitutional violation.” Hamm, 774 F.2d at 1575. “The Constitution requires that prisoners be provided rea- sonably adequate food,” and “[a] well-balanced meal, containing sufficient nutritional value to preserve health, is all that is re- quired.” Id. (quoting Smith v. Sullivan, 553 F.2d 373, 380 (5th Cir. 1977)). “The fact that the food occasionally contains foreign ob- jects or sometimes is served cold, while unpleasant, does not amount to a constitutional deprivation.” Id. Prison officials must also “take reasonable measures to guarantee the safety of the in- mates,” such as protecting prisoners “from violence at the hands of other prisoners.” Farmer v. Brennan, 511 U.S. 825, 833 (1994). Additionally, “[t]he Eighth Amendment—and therefore the Fourteenth—is violated when a jailer is deliberately indifferent to a substantial risk of serious harm to an inmate who suffers injury.” Swain v. Junior, 961 F.3d 1276, 1285 (11th Cir. 2020) (quoting Lane v. Philbin, 835 F.3d 1302, 1307 (11th Cir. 2016)). “To establish a deliberate-indifference claim, a plaintiff must make both an objective and a subjective showing.” Id. “Under the objective component, the plaintiff must demonstrate a substantial USCA11 Case: 22-13418 Document: 47-1 Date Filed: 07/08/2024 Page: 27 of 39

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risk of serious harm.” Id. “Under the subjective component, the plaintiff must prove the defendants’ deliberate indifference to that risk of harm by making three sub-showings: (1) subjective knowledge of a risk of serious harm; (2) disregard of that risk; (3) by conduct that is more than mere negligence.” Id. (quoting Lane, 835 F.3d at 1308). “The deliberate-indifference standard sets an ap- propriately high bar,” and “[a] plaintiff must prove that the defend- ant acted with “a sufficiently culpable state of mind.” Id. (quoting Farmer, 511 U.S. at 834)). Moreover, to prevail against prison offi- cials in their individual capacities, the plaintiff must show that they were personally involved in acts or omissions that resulted in the constitutional deprivation. Hale v. Tallapoosa Cnty., 50 F.3d 1579, 1582 (11th Cir. 1995). “When an officer is sued under Section 1983 in his or her official capacity, the suit is simply another way of pleading an ac- tion against an entity of which an officer is an agent.” Busby v. City of Orlando, 931 F.2d 764, 776 (11th Cir. 1991). “Such suits against municipal officers are therefore, in actuality, suits directly against [the county] that the officer represents.” See id.; see also Abusaid v. Hillsborough Cnty. Bd. of Cnty. Comm’rs, 405 F.3d 1298, 1302 n.3 (11th Cir. 2005). “[T]o impose § 1983 liability on a municipality, a plaintiff must show: (1) that his constitutional rights were violated; (2) that the municipality had a custom or policy that constituted deliberate indifference to that constitutional right; and (3) that the policy or custom caused the violation.” McDowell v. Brown, 392 F.3d 1283, USCA11 Case: 22-13418 Document: 47-1 Date Filed: 07/08/2024 Page: 28 of 39

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1289 (11th Cir. 2004). “It is only when the execution of the govern- ment’s policy or custom inflects the injury that the municipality may be held liable.” Id. A plaintiff has “two methods by which to establish a county’s policy: identify either (1) an officially promul- gated county policy or (2) an unofficial custom or practice of the county shown through the repeated acts of a final policymaker for the county.” Grech v. Clayton Cnty., Ga., 335 F.3d 1326, 1329 (11th Cir. 2003). The plaintiff must also show that “the county’s custom or practice is the moving force behind the constitutional violation.” Id. First, the district court properly found that the conditions of Wappler’s confinement did not amount to punishment or other- wise amount to a constitutional violation. See Jacoby, 835 F.3d at 1344–45. As to his claim that he was not provided utensils to eat his food while he was in the bubble, he denied that any physical injury resulted from eating without utensils. Wappler also failed to provide evidence to establish that he was deprived of utensils for a punitive purpose, or that the lack of utensils led to sanitation is- sues that caused him an injury. And he did not otherwise present evidence that he was deprived of reasonably adequate meals, which is all that is required of the jail, so the fact that meals were served without utensils did not alone amount to a constitutional violation. See Hamm, 774 F.2d at 1575; Crawford, 906 F.2d at 670; Mosley, 694 F.3d at 1301. Turning to Wappler’s claim that he was housed with convicted inmates while he was at the jail, he testified that he did not endure violence from being housed with such in- mates, and thus the fact that he was housed with convicted inmates USCA11 Case: 22-13418 Document: 47-1 Date Filed: 07/08/2024 Page: 29 of 39

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did not amount to a constitutional violation. See Farmer, 511 U.S. at 833. Wappler also claimed that triple-bunking was a constitu- tional violation, but the Supreme Court has held that placing two detainees in a cell intended for one was not a constitutional viola- tion, and Wappler did not provide evidence that the cell in which he was housed was intended for one detainee rather than two or three. See Jacoby, 835 F.3d at 1345; Bell, 441 U.S. at 543; Crawford, 906 F.2d at 670; Mosley, 694 F.3d at 1301. And though he was in the triple-bunk cell for longer than 60 days, Wappler did not provide evidence that the cell lacked adequate space for sleeping, and he testified that, on occasions, there would be two people rather than three people housed in the cell and that he was allowed to spend 13 hours of the day in the day room. See Bell, 441 U.S. at 543; Craw- ford, 906 F.2d at 670; Mosley, 694 F.3d at 1301. As to Wappler’s claim that the jail was unsanitary, he testi- fied that the jail was regularly cleaned, and each week he was pro- vided some cleaning supplies. Thus, the alleged unsanitary condi- tions of the jail did not amount to a constitutional violation. See Jacoby, 835 F.3d at 1345; Bell, 441 U.S. at 537. Wappler also claims that the jail was too noisy, particularly because of the screaming, hollering, and doors slamming. Wappler said that he suffered se- vere hearing loss, but he provided no evidence whatsoever regard- ing when this hearing loss occurred or that any hearing damage was caused by the noise at the jail. Ultimately, Wappler points to no evidence to suggest that the conditions he described were USCA11 Case: 22-13418 Document: 47-1 Date Filed: 07/08/2024 Page: 30 of 39

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atypical for a jail environment nor any evidence showing that noisy conditions caused him any harm. See Jacoby, 835 F.3d at 1345; Bell, 441 U.S. at 537. As for Wappler’s claim that the jail was overcrowded, he did not present evidence that the jail’s supposed overpopulation im- pacted the jail’s ability to provide such necessities as food, medical care, and sanitation. See Jacoby, 835 F.3d at 1345; Bell, 441 U.S. at 537; Crawford, 906 F.2d at 670; Mosley, 694 F.3d at 1301. As to his other claims about the lack of comforts—including socks, his pre- ferred shoes, fresh air, blankets—violating his constitutional rights, the fact that detention interfered with his desire to live as comfort- ably as he would have liked did not convert the jail’s conditions or restrictions of detention into punishment. See Bell, 441 U.S. at 537. Moreover, he did not present evidence that any of the conditions of confinement were arbitrary or purposeless. See Jacoby, 835 F.3d at 1345; Crawford, 906 F.2d at 670; Mosley, 694 F.3d at 1301. We, therefore, agree with the district court that the conditions of Wap- pler’s confinement did not amount to punishment or otherwise amount to a constitutional violation. Turning to Wappler’s claims against Sheriff Ivey, the district court properly found that no genuine issue of material fact existed. Even assuming that Wappler established that he faced substantial risks of harm, including his alleged toe fungus, hearing loss, anxi- ety, sleep disturbance, and emotional distress, he did not present evidence that Ivey had subjective knowledge of such risks to his health and safety so as to constitute deliberate indifference. See USCA11 Case: 22-13418 Document: 47-1 Date Filed: 07/08/2024 Page: 31 of 39

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Swain, 961 F.3d at 1285; Crawford, 906 F.2d at 670; Mosley, 694 F.3d at 1301. In fact, Wappler did not present evidence that Ivey was personally involved in any act or omission that resulted in his al- leged constitutional deprivations. See Hale, 50 F.3d at 1582; Craw- ford, 906 F.2d at 670; Mosley, 694 F.3d at 1301. Thus, Ivey was enti- tled to summary judgment. Lastly, the district court properly found that no genuine is- sue of material fact existed as to Wappler’s claims against the County. Mosley, 694 F.3d at 1300; McDowell, 392 F.3d at 1289. Be- cause he suffered no constitutional deprivation, his claim against the County necessarily failed. See McDowell, 392 F.3d at 1289. And even if a constitutional deprivation existed, to the extent that Wap- pler asserted that the County had a practice of underfunding the jail, he did not provide evidence that such a budgeting practice was either an officially promulgated county policy or an unofficial cus- tom or a practice of the County established through the repeated acts of a final policymaker. Grech., 335 F.3d at 1329; Crawford, 906 F.2d at 670; Mosley, 694 F.3d at 1301. Wappler did not provide evi- dence that such a budgeting practice was the moving force behind any alleged constitutional violation, and, other than his conclusory allegations, he did not otherwise provide evidence of any other pol- icy or custom that satisfied the requirements under McDowell and Grech to prevail on his claims against the County. McDowell, 392 F.3d at 1289; Grech, 335 F.3d at 1329; Crawford, 906 F.2d at 670; Mos- ley, 694 F.3d at 1301. Thus, the County was entitled to summary judgment. USCA11 Case: 22-13418 Document: 47-1 Date Filed: 07/08/2024 Page: 32 of 39

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In sum, the district court properly granted summary judg- ment on Wappler’s conditions-of-confinement claims against Ivey and the County because the evidence showed that the conditions of his confinement did not amount to punishment or otherwise amount to a constitutional violation. Wappler also failed to pre- sent evidence showing that Ivey was personally involved in any act or omission that led to his alleged constitutional deprivations, nor did he present evidence that the County had any policy, custom, or practice that was the moving force behind his alleged constitutional violations. Accordingly, Ivey and the County were entitled to sum- mary judgment on these claims. B. Wappler’s Retaliation and Due Process Claims Like his conditions-of-confinement claim, Wappler has also arguably abandoned his due process and retaliation claims because he fails to raise those issues plainly and prominently on appeal and similarly resorts to generally reasserting the allegations in his amended complaint. Sapuppo, 739 F.3d at 681; Irwin, 40 F.3d at 347 n.1. In any event, Wappler’s claims also fail on the merits. “To establish a retaliation claim, a prisoner must demon- strate ‘that the prison official’s actions were the result of his having filed a grievance concerning the conditions of his imprisonment.’” Williams v. Radford, 64 F.4th 1185, 1192 (11th Cir. 2023) (quoting Farrow v. West, 320 F.3d 1235, 1248 (11th Cir. 2003)). A plaintiff can prevail on a retaliation claim if “(1) his speech was constitutionally protected; (2) [he] suffered adverse action such that the administra- tor’s allegedly retaliatory conduct would likely deter a person of USCA11 Case: 22-13418 Document: 47-1 Date Filed: 07/08/2024 Page: 33 of 39

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ordinary firmness from engaging in such speech; and (3) there is a causal relationship between the retaliatory action and the pro- tected speech.” Id. (quoting Smith v. Mosley, 532 F.3d 1270, 1276 (11th Cir. 2008)). In evaluating whether the plaintiff established causation, we ask whether the defendant was “subjectively motivated” to disci- pline the plaintiff for exercising his First Amendment rights. Id. at 1193. We have held that “any possible causal connection between the protected activity (the grievances) and the harm (the discipli- nary charges and sanctions) is severed [when] the harm is not in reaction to any protected activity, but directly due to an improper activity.” O’Bryant v. Finch, 637 F.3d 1207, 1219–20 (11th Cir. 2011). If the defendant can show that he would have “taken the same dis- ciplinary actions in the absence of [the] protected activity,” he is entitled to summary judgment. Id. at 1217, 1219. Additionally, “[w]here a constitutionally protected liberty interest exists . . . a prison must give an inmate: (1) advance written notice of the charges; (2) a written statement of the reasons for the disciplinary action taken; and (3) the opportunity to call witnesses and present evidence when permitting him to do so will not be un- duly hazardous to institutional safety or correctional goals.” Jacoby, 835 F.3d at 1350 (quoting Wolff v. McDonnell, 418 U.S. 539, 564-66 (1974)). Here, we conclude that the district court did not err by granting summary judgment on Wappler’s due process and retali- ation claims. First, Wappler’s due process rights were not violated USCA11 Case: 22-13418 Document: 47-1 Date Filed: 07/08/2024 Page: 34 of 39

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because he was provided with advance written notices of the charges; he was provided with the incident reports, which he signed in acknowledgment, affirming that he understood the na- ture of the charges against him and the disciplinary actions that were taken; and he had the opportunity to call witnesses and pre- sent evidence. See Jacoby, 835 F.3d at 1350. Second, the jail officials did not engage in retaliatory conduct because the record showed that the disciplinary actions were direct reactions to Wappler’s mis- conduct, not because of any alleged prior protected activity. See Williams, 64 F.4th at 1192–93; O’Bryant, 637 F.3d at 1217, 1219–20. Wappler presented no evidence to show otherwise. And the offic- ers stated in their affidavits—against which Wappler offers no com- peting evidence—that they would have taken the same disciplinary actions absent any alleged prior protected activity. See O’Bryant, 637 F.3d at 1217, 1219. Accordingly, the jail officials were entitled to summary judgment on these claims, and we affirm as to this is- sue. C. Sheriff Ivey’s Counterclaim “If a party fails to properly support an assertion of fact or fails to properly address another party’s assertion of fact as required by Rule 56(c), the court may . . . . grant summary judgment if the mo- tion and supporting materials—including the facts considered un- disputed—show that the movant is entitled to it.” Fed. R. Civ. P. 56(e)(3). In United States v. One Piece of Property, 5800 S.W. 4th Ave., Mi- ami, Florida, 363 F.3d 1099 (11th Cir. 2004), we held that USCA11 Case: 22-13418 Document: 47-1 Date Filed: 07/08/2024 Page: 35 of 39

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“[s]ummary judgment [would be] appropriate where the ‘plead- ings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genu- ine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.’” Id. at 1101 (citing Fed. R. Civ. P. 56(c)). Therefore, “the district court cannot base the entry of sum- mary judgment on the mere fact that the motion was unopposed, but, rather, must consider the merits of the motion.” Id. Addition- ally, “so that there can be an effective review of the case on appeal, the district court’s order granting summary judgment must ‘indi- cate that the merits of the motion were addressed.’” Id. at 1102 (quoting Dunlap v. Transamerica Occidental Life Ins. Co., 858 F.2d 629, 632 (11th Cir. 1988)). After so holding, we noted that we need not decide whether the district court granted summary judgment without considering the merits of the motion because a “review of the record convince[d] us that there [was] a genuine issue of mate- rial fact that made summary judgment inappropriate.” Id. at 1102 n.2. We have also vacated the district court’s judgment, without concluding whether the record revealed a genuine issue of material fact, when it was “apparent that the district court did not examine the merits of [the] case, but instead granted summary judgment by default merely because it believed [that the opposing party] had filed no response.” Trs. of Cent. Pension Fund of Int’l Union of Operat- ing Eng’rs & Participating Emp’rs v. Wolf Crane Serv., Inc., 374 F.3d 1035, 1040 (11th Cir. 2004). USCA11 Case: 22-13418 Document: 47-1 Date Filed: 07/08/2024 Page: 36 of 39

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Under Florida law, “[u]pon conviction, a convicted offender is liable to the state and its local subdivisions for damages and losses for incarceration costs and other correctional costs,” and a “local subdivision of” the state can petition for a civil restitution lien to recover those costs. Fla. Stat. § 960.292(1)-(2). If “the conviction is for an offense other than a capital or life felony, a liquidated dam- age amount of $50 per day of the convicted offender’s sentence shall be assessed against the convicted offender and in favor of the state or its local subdivisions.” Id. § 960.293(2)(b). The state and its local subdivisions, in a separate civil action or as counterclaim in any civil action, may seek recovery of such damages and losses. Id. § 960.297(1). Here, we conclude that the district court erred by granting summary judgment on Ivey’s counterclaim because it was appar- ent that the court did not consider the merits of the counterclaim and based its judgment on the belief that Wappler did not dispute the counterclaim. Wolf Crane Serv., 374 F.3d at 1040. Though we have vacated judgments on this basis alone, we have also reviewed the record to determine whether a genuine issue of material fact exists when a district court enters judgment without considering the merits. See Wolf Crane Serv., 374 F.3d at 1040; One Piece of Prop- erty, 363 F.3d at 1101–02, 1102 n.2. Based on a review of the record here, had the district court indicated that it considered the merits of the counterclaim, it ap- pears that the court still may have erred by granting summary judg- ment on the counterclaim for the total amount of $91,250. See One USCA11 Case: 22-13418 Document: 47-1 Date Filed: 07/08/2024 Page: 37 of 39

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Piece of Property, 363 F.3d at 1101–02, 1102 n.2. Though Wappler was sentenced to a total of 60 months’ imprisonment for his con- victions, the record showed that he only spent about 17 months and 3 weeks at the jail. Section 960.293(2) does not limit costs to those incurred after conviction, and thus a convicted offender could be liable for costs related to his pretrial detention. In such a scenario, however, the sheriff would be entitled only to an amount determined by how many days the plaintiff was actually detained in the jail. See Fla. Stat. §§ 960.292(1)-(2), 960.293(2)(b), 960.297(1). This approach makes sense because the evident purpose of the rel- evant Florida statutes is to reimburse the government for costs of incarceration—which must, in all fairness, be actual and not hypo- thetical. Thus, Ivey would be entitled to an amount calculated based on the 17 months and 3 weeks that Wappler had been housed at the jail, not the amount calculated based on his total sentence upon conviction. See Fla. Stat. §§ 960.292(1)-(2), 960.293(2)(b), 960.297(1). We thus conclude that the district court erred by granting summary judgment on the sheriff’s counterclaim because the dis- trict court did not consider the merits of the counterclaim and based its judgment, instead, on the belief that Wappler did not dis- pute the counterclaim. Wolf Crane Serv., 374 F.3d at 1040. We therefore vacate and remand as to this issue. D. Wappler’s Motion to File a Second Amended Complaint USCA11 Case: 22-13418 Document: 47-1 Date Filed: 07/08/2024 Page: 38 of 39

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Finally, we turn to the district court’s denial of leave for Wappler to file a second amended complaint. We review the de- nial of a motion to amend a complaint for an abuse of discretion. Burger King Corp. v. Weaver, 169 F.3d 1310, 1319 (11th Cir. 1999). When “the denial is based on a legal determination that amend- ment would be futile,” we review such decisions de novo. Taveras v. Bank of Am., N.A., 89 F.4th 1279, 1285 (11th Cir. 2024) (quoting Gonzalez v. City of Deerfield Beach, 549 F.3d 1331, 1332–33 (11th Cir. 2008)). After the time for amending as a matter of course has passed, amendments are permissible only with the opposing party’s writ- ten consent or the court’s leave, which the court “should freely give . . . when justice so requires.” Fed. R. Civ. P. 15(a)(2). A dis- trict court may deny such leave where (1) there has been undue delay, bad faith, dilatory motive, or repeated failure to cure defi- ciencies by amendments previously allowed; (2) allowing amend- ment would cause undue prejudice to the opposing party; or (3) amendment would be futile. Weaver, 169 F.3d at 1319. When the complaint as amended would still be dismissed, the district court may properly deny a motion for leave to amend as futile. Taveras, 89 F.4th at 1289. We have previously held that there was “no good reason” for a belated amended complaint when the operative facts support- ing new claims were known to the plaintiff when the case was orig- inally filed, and the failure to include the new claims at the outset was “not explained.” Maynard v. Bd. of Regents of Div. of Universities USCA11 Case: 22-13418 Document: 47-1 Date Filed: 07/08/2024 Page: 39 of 39

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of Fla. Dep’t of Educ., 342 F.3d 1281, 1287 (11th Cir. 2003). In such a situation, the district court does not abuse its discretion by denying the plaintiff’s motion to amend his complaint. See id. Here, we conclude that the district court did not err by deny- ing Wappler’s motion for leave to file a second amended complaint because Wappler demonstrated no good reason as to why he could not have filed his motion earlier and the amendments that he re- quested to add to his existing claims were futile. Weaver, 169 F.3d at 1319; Taveras, 89 F.4th at 1289. IV. CONCLUSION For these reasons, we affirm: (1) the district court’s entry of summary judgment in favor of the defendants on Wappler’s condi- tions-of-confinement claim, (2) the district court’s entry of sum- mary judgment in favor of the defendants on Wappler’s due pro- cess and retaliation claims, and (3) the district court’s denial of Wappler’s motion to file a second amended complaint. As to the district court’s entry of summary judgment on the sheriff’s coun- terclaim, we vacate and remand to the district court for further pro- ceedings. AFFIRMED IN PART, VACATED AND REMANDED IN PART.