Jemison v. Wise

Filing 52

AMENDMENT TO MEMORANDUM OPINION AND ORDER. The court filed a Memorandum of Opinion and Order 51 adopting the magistrate judge's Report and Recommendation and denying the defendant's Motion for Summary Judgment on July 16, 2012. The court now amends that memorandum to cite the Eleventh Circuit's recent decision in Burns v. Warden, USP Beaumont, No. 11-14149, 2012 WL 2430463 (11th Cir. June 28, 2012). Signed by Judge Robert B Propst on 7/16/2012. ** copy provided to pro se pltf by US Mail, this date. (FNC)

FILED
2012 Jul-16 AM 08:47
U.S. DISTRICT COURT
N.D. OF ALABAMA

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

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

AMENDMENT TO MEMORANDUM OF OPINION AND ORDER
The court filed a Memorandum of Opinion and Order adopting the magistrate
judge’s Report and Recommendation and denying the defendant’s Motion for
Summary Judgment on July 16, 2012. The court now amends that memorandum to
cite the Eleventh Circuit’s recent decision in Burns v. Warden, USP Beaumont, No.
11-14149, 2012 WL 2430463 (11th Cir. June 28, 2012). The plaintiff Burns alleged
that he was transferred in retaliation for filing a grievance against prison staff, who
made it difficult for him to exhaust his administrative remedies before filing suit. The
Eleventh Circuit vacated the district court’s dismissal of the plaintiff’s claim, stating:
“The First Amendment forbids prison officials from retaliating against
prisoners for exercising the right to free speech.” Farrow v. West, 320
F.3d 1235, 1248 (11th Cir. 2003). Retaliation against an inmate for
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filing administrative grievances and lawsuits may violate First
Amendment rights. Wright v. Newsome, 795 F.2d 964, 968 (11th Cir.
1986); Bridges v. Russell, 757 F.2d 1155, 1156-57 (11th Cir. 1985). An
inmate must establish three elements to prevail on a retaliation claim.
Bennett v. Hendrix, 423 F.3d 1247, 1250 (11th Cir. 2005). Specifically,
the inmate must establish that (1) his speech was constitutionally
protected; (2) the defendant’s retaliatory conduct adversely affected the
protected speech; and (3) there was a causal relationship between the
retaliatory action and the adverse effect on speech. Id. To establish
causation, the plaintiff must show that the defendant was “subjectively
motivated to discipline” the plaintiff for exercising his First Amendment
rights. Smith v. Mosely, 532 F.3d 1270, 1278 (11th Cir. 2008).
Id. at *2.
DONE and ORDERED this the 16th day of July, 2012.

ROBERT B. PROPST
SENIOR UNITED STATES DISTRICT JUDGE

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