Jemison v. Wise

Filing 46

MEMORANDUM OPINION AND ORDER-re: 41 REPORT AND RECOMMENDATION. The court is of the opinion that the magistrate judge's report is due to be and hereby is ADOPTED and his recommendation is ACCEPTED. It is ORDERED that the dft's motion for summary judgment is DENIED. This matter is REFERRED to the magistrate judge for further proceedings. Signed by Judge Robert B Propst on 7/9/2012. (AVC)

FILED
2012 Jul-09 PM 12:07
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
BERNARD JEMISON,
Plaintiff
vs.
WARDEN DAVID WISE,
Defendant

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Case No. 2:09-cv-00961-RBP-HGD

MEMORANDUM OF OPINION AND ORDER
The magistrate judge filed a report on April 10, 2012, recommending that the
defendant’s special report be treated as a motion for summary judgment and, as such,
that it be denied. Although the parties were advised of their right to file specific
written objections within fourteen (14) days, there has been no response to the report
and recommendation.
Having carefully reviewed and considered de novo all the materials in the court
file, including the report and recommendation, the court is of the opinion that the
magistrate judge’s report is due to be and hereby is ADOPTED and his
recommendation is ACCEPTED. The Eleventh Circuit has held that “[a]n inmate
raises a constitutional claim of retaliation if he establishes that the prison disciplined
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him for filing a grievance or lawsuit concerning the conditions of his imprisonment.”
Smith v. Florida Dept. Of Corrections, 318 Fed. Appx. 726, 728 (11th Cir. 2008)
(citing Wildberger v. Bracknell, 869 F. 2d 1467, 1468 (11th Cir. 1989)). Under the
First Amendment, “prison officials may not retaliate against inmates for filing
lawsuits or administrative grievances.” Id. (citing Wright v. Newsome, 795 F.2d 964,
968 (11th Cir. 1986)). See also Bridges v. Russell, 757 F. 2d 1155, 1156 (11th Cir.
1985) (finding that a prisoner’s filing of grievances is protected by the First
Amendment, and that prisoners may not be transferred to another facility for punitive
or retaliatory reasons). Furthermore, the Eleventh Circuit in Bridges also found it
irrelevant for purposes of the prisoner’s First Amendment claim that a prisoner has
no liberty interest in remaining at a particular correctional facility. Bridges, 757 F. 2d
at 1156. There are remaining issues of fact as to whether the plaintiff’s First
Amendment rights were violated. Accordingly, it is ORDERED that the defendant’s
motion for summary judgment is DENIED. This matter is REFERRED to the
magistrate judge for further proceedings.

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DONE this 9th day of July, 2012.

ROBERT B. PROPST
SENIOR UNITED STATES DISTRICT JUDGE

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