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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Page 1 of 3 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 Page 2 of 3 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 Page 3 of 3 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

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