THOMPSON v. SOLANO et al

Filing 86

ORDER adopting Chief Magistrate's 80 REPORT AND RECOMMENDATION, modified only to dismiss in part the retaliation claim against OFFICER JOHNSON that relies on "authorizing false DRs as punishment." Defendants' ; Motion for Summary Judgment, ECF No. 56 , is GRANTED IN PART as to all of Plaintiff's claims for damages except for a nominal damage award and as to that portion of the retaliation claim against Officer Johnson that relies on "author izing false DRs as punishment;" the motion is DENIED in all other respects. Clerk is directed to refer the case to the Magistrate Judge for further proceedings and a pretrial settlement conference. Signed by JUDGE M CASEY RODGERS on 08/28/2018. (MB)

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION

JAVADO AUDRIC THOMPSON,
Inmate No. C01034,
Plaintiff,
v.

CASE NO. 3:14cv246/MCR/EMT

Captain PATRICK WALSH and
Officer FREDDY JOHNSON,
Defendants.
_________________________________/
ORDER
This case is before the court on the Chief Magistrate Judge’s Report and
Recommendation dated July 19, 2018. ECF No. 80. The parties have been furnished
a copy of the Report and Recommendation and have been afforded an opportunity to
file objections pursuant to Title 28, United States Code, Section 636(b)(1). See ECF
Nos. 81, 82, 83, 84, 85. The Court has made a de novo determination of the timely
filed objections.
Having considered the Report and Recommendation, and the objections of both
parties, the Court finds that the Report and Recommendation should be adopted with
one revision. Although, as the Chief Magistrate Judge found, the scope of Plaintiff’s

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retaliation claim exceeds his allegation of retaliatory false disciplinary reports
(“DRs”), the Court agrees with Defendants in one limited respect, that is, that
Plaintiff’s claim of First Amendment retaliation must be dismissed insofar as it is
based on Plaintiff’s allegation that Officer Johnson “authoriz[ed] false DRs as
punishment” for Plaintiff’s conduct of petitioning the governor or filing a grievance.
Because the undisputed record shows that Plaintiff received due process with regard
to each of the DRs at issue, Plaintiff cannot state a retaliation claim based Officer
Johnson’s authorizing the filing of the DRs. See O’Bryant v. Finch, 637 F.3d 1207,
1217 (11th Cir. 2011) (no retaliation claim can be stated against a prison employee
who reported a disciplinary infraction if the prisoner was later found guilty of it after
being afforded due process where there was evidence to support the disciplinary
panel’s finding). The Court agrees with the Chief Magistrate Judge that a question
of fact exists as to the other forms of retaliation Plaintiff represented. Having fully
considered the remaining objections of both parties, the Court finds them to be
without merit for reasons stated by the Chief Magistrate Judge.1
1

In addition, the Court finds no merit to the Defendants’ contention that recent Supreme
Court cases (which address the qualified immunity standard under the Fourth Amendment) have
overruled the Eleventh Circuit’s case of Johnson v. Breeden, 280 F.3d 1308 (11th Cir. 2002) (finding
that the subjective element of an Eighth Amendment claim is so extreme that “there is no room for
qualified immunity”). The Supreme Court cases Defendants cite address only the Fourth
Amendment qualified immunity standard, which does not apply in this context, no the Eighth
Amendment standard. Also, because the Defendants conceded in the summary judgment motion that
there is a question of fact on whether there has been a constitutional violation, ECF No. 56, at 27,
Case No. 3:14cv246/MCR/EMT

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Accordingly, it is now ORDERED as follows:
1.

The Chief Magistrate Judge’s Report and Recommendation is adopted

and incorporated by reference in this Order, modified only to dismiss in part the
retaliation claim against Officer Johnson that relies on “authorizing false DRs as
punishment.”
2.

Defendants’ Motion for Summary Judgment, ECF No. 56, is GRANTED

IN PART as to all of Plaintiff’s claims for damages except for a nominal damage
award and as to that portion of the retaliation claim against Officer Johnson that relies
on “authorizing false DRs as punishment;” the motion is DENIED in all other
respects.
3.

The Clerk is directed to refer the case to the Magistrate Judge for further

proceedings and a pretrial settlement conference.
DONE AND ORDERED this 28th day of August 2018.

M. Casey Rodgers
M. CASEY RODGERS
UNITED STATES DISTRICT JUDGE

as the Chief Magistrate Judge also noted, they are not permitted to argue otherwise in an objection.
Case No. 3:14cv246/MCR/EMT