MATHEWS v. HODGSON et al

Filing 44

ORDER OF DISMISSAL - The 40 report and recommendation is accepted. The clerk must enter judgment stating, "The plaintiff's claims are dismissed for failure to state a claim on which relief can be granted." The clerk must close the file. Signed by JUDGE ROBERT L HINKLE on 3/15/2017. (vkm)

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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION
CECIL MATHEWS,
Plaintiff,
v.

CASE NO. 4:15cv618-RH/CAS

WARDEN HODGSON et al.,
Defendants.
_____________________________/
ORDER OF DISMISSAL
This prisoner civil-rights case is before the court on the magistrate judge’s
report and recommendation, ECF No. 40, and the objections, ECF No. 43. I have
reviewed de novo the issues raised by the objections. The report and
recommendation is correct and is adopted as the court’s opinion, with these
additional notes.
The plaintiff was disciplined for submitting a grievance that said of a
correctional officer: “Liar, liar, pants on fire.” The prisoner says this was funny
and is protected by the First Amendment. The defendants say this was disrespectful
and warranted discipline.

Case No. 4:15cv618-RH/CAS

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In most other contexts, a remark like this would plainly be protected by the
First Amendment. But prison officials have a greater right to prohibit disrespectful
comments by prisoners than possessed by government officials in other
circumstances. See generally Turner v. Safley, 482 U.S. 78 (1987).
A prisoner could plainly be disciplined for making a remark like this directly
to a correctional officer in the cellblock or on the yard. That the plaintiff put the
remark in a grievance does not make it less disrespectful. Imposing discipline
based on this remark did not violate the First Amendment.
In asserting the contrary, the plaintiff relies heavily on Bradley v. Hall, 64
F.3d 1276 (9th Cir. 1995). But Bradley was never the law in the Eleventh Circuit
and, in any event, did not survive Shaw v. Murphy, 532 U.S. 223 (2001). See
Blaisdell v. Frappiea, 729 F.3d 1237, 1243 (9th Cir. 2013) (recognizing that Shaw
overruled Bradley on other grounds); see also Brodheim v. Cry, 584 F.3d 1262,
1272 (9th Cir. 2009) (noting that Bradley’s modification of the Turner test did not
survive Shaw); Hale v. Scott, 252 F. Supp. 2d 728, 733 (C.D. Ill. 2003) (same); see
also Helm v. Hughes, No. C09-5381 RJB/KLS, 2011 WL 476461 (W.D. Wash.
Jan. 6, 2011) (upholding discipline for recounting a disrespectful rumor in a
grievance); Basham v. Rubenstein, No. 5:06-cv-00713, 2007 WL 2156589 (S.D.
W.Va. July, 25, 2007) (upholding discipline for disrespectful comment in a
grievance).

Case No. 4:15cv618-RH/CAS

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So the plaintiff’s claim is unfounded. Even more clearly, his damages claim
is barred by qualified immunity.
For these reasons and those set out in the report and recommendation,
IT IS ORDERED:
1. The report and recommendation is accepted.
2. The clerk must enter judgment stating, “The plaintiff’s claims are
dismissed for failure to state a claim on which relief can be granted.”
3. The clerk must close the file.
SO ORDERED on March 15, 2017.
s/Robert L. Hinkle
United States District Judge

Case No. 4:15cv618-RH/CAS