Sexton v. GEORGIA DEPARTMENT OF CORRECTIONS et al
Filing
23
ORDER granting 18 Motion for Summary Judgment. Ordered by US DISTRICT JUDGE CLAY D. LAND on 4/16/2018 (tlf).
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
DONNA SEXTON,
*
Plaintiff,
*
vs.
*
GEORGIA DEPARTMENT OF
CORRECTIONS and SHELAY SMITH,
*
CASE NO. 4:17-CV-45 (CDL)
*
Defendants.
*
O R D E R
This action arises from Plaintiff’s visit with her son, who
was an inmate at Rutledge State Prison (the “Prison”).
the
visit,
a
Plaintiff
correctional
while
officer
attempting
to
had
enforce
an
During
altercation
the
Prison’s
with
rules.
Plaintiff asserts claims against that correctional officer in
the officer’s individual capacity under 42 U.S.C. § 1983 for
violations
rights.
of
her
First
and
Fourth
Amendment
constitutional
The officer has filed a motion for summary judgment,
asserting
qualified
establish
that
established
the
rights,
immunity.
Because
officer
correctional
the
officer
Plaintiff
violated
is
entitled
failed
her
to
to
clearly
qualified
immunity, and her motion for summary judgment (ECF No. 18) is
accordingly
granted.
All
of
Plaintiff’s
other
claims
were
dismissed previously when the Court granted Defendants’ motion
for judgment on the pleadings.
Order Granting Mot. J. Pleadings
23–24, ECF No. 10.
FACTUAL BACKGROUND
At
the
summary judgment
stage, the Court
must view the
record in the light most favorable to the plaintiff and draw all
reasonable factual inferences in her favor when deciding whether
a government official is entitled to qualified immunity.
v.
Suszczynski,
809
F.3d
1213,
1217
(11th
Perez
Cir.
2016).
Therefore, the record considered by the Court is limited to the
undisputed facts and the plaintiff’s version of the disputed
facts.
Id.
That record establishes the following:
To address a problem with contraband entering the Prison,
the warden implemented new procedures in August 2015 to prevent
visitors from
passing
contraband to inmates.
Under the
new
procedures, visitors were required to empty food purchased from
vending machines in the visitation room onto disposable plates
and to throw away the wrappers so that correctional officers
could
better
observe
what
was
passed
reports
from
informants
between
inmates
and
visitors.
Based
on
and
his
staff,
Deputy
Warden of Security Darryl Warren believed that inmate Markus
Funck was a source of the Prison’s contraband problem.
believed
during
that
the
Funck
was
visitation
expecting
period
a
delivery
scheduled
2
for
of
April
He also
contraband
22,
2015.
Warren Decl. ¶¶ 11 & 12, ECF No. 18-4.1
informed
Defendant
Shelay
Smith,
the
Accordingly, Warren
correctional
officer
monitoring the visitation room that day, to keep a close eye on
Funck and his visitors.
Plaintiff arrived at the Prison on April 22 to visit Funck,
her son.
learned
When Plaintiff entered the visitation room,
that
Plaintiff
was
visiting
Funck
Plaintiff to sit at a table in front of her.
and
Smith
instructed
Compl. Ex. B, GDC
Incident Report-D. Sexton Statement Under Oath, ECF No. 1-1 at
32, 33.2
While waiting for her son, Plaintiff went to the
vending machines, purchased some packages of food, and returned
to the table in front of Smith.
Id.
Another visitor told
Plaintiff that a new rule required Plaintiff to open the bags of
food and put the items on a plate.
“[O]kay—would
Smith
have
responded,
been
“I
nice
would
to
have
Id.
have
gotten
Plaintiff said aloud,
been
told
around
that.”
to
it.”
Id.
Id.
Plaintiff then opened one bag of food, and Smith told her to
open the other bag as well.
Id.
1
When Plaintiff asked whether
Warren’s statements about the reports he received from informants and
his staff are not offered for the truth of the matter asserted in them
and, thus, are not hearsay. See Fed. R. Evid. 801(c)(2). Therefore,
Plaintiff’s hearsay objections are overruled.
2
Smith’s objections to Plaintiff’s statements in the Incident Report
are overruled because Plaintiff could testify to the same facts at
trial. See Jones v. UPS Ground Freight, 683 F.3d 1283, 1293–94 (11th
Cir. 2012) (“[A] district court may consider a hearsay statement in
passing on a motion for summary judgment if the statement could be
reduced to admissible evidence at trial or reduced to admissible
form.”).
3
she could wait to open it until Funck arrived, Smith directed
her to go ahead and open the bag.
Id.
Officers eventually
brought Funck to the visitation room.
Cameras in the visitation room captured the events that
unfolded next on video.
See generally Def.’s Notice of Physical
Filing, Prison Video (Aug. 22, 2015), ECF No. 19 [hereinafter
Prison Video].
The video shows Smith sitting behind a table in
the back of the visitation room such that she could see the
inmates and visitors in front of her.
Id.
Plaintiff and Funck
sat at one of the tables directly in front of Smith.
Id.
Plaintiff twice left the table to purchase more food from the
vending machines.
Id. at 10:26:45–10:27:21, 10:27:30–10:28:21;
see also GDC Incident Report-Addition to D. Sexton Statement
Under Oath, ECF No. 1-1 at 35 [hereinafter D. Sexton Suppl.
Statement];
Smith
Decl.
¶ 10,
ECF
No.
18-3.
Apparently,
Plaintiff brought the food back from the vending machine without
opening the packages, emptying the food onto the plate she was
using,
or
discarding
the
wrappers.
See
Smith
Decl.
¶ 10
(stating that Plaintiff did not put the contents of the food
packages on a plate).
Some wrappers fell onto the floor, and
when Funck picked them up and gave them to Plaintiff, Smith
approached their table and
wrappers immediately.
told Plaintiff to throw away the
Smith then returned to her desk while
Plaintiff threw away the wrappers.
4
D. Sexton Suppl. Statement;
Prison
Video
10:28:57–10:29:34.
Seeing
other
visitors
were
similarly in violation of the rules, Plaintiff “said something
to
[Smith]
about
it”
on
her
way
back
from
the
trash
can.
D. Sexton Suppl. Statement.3
Moments
terminated
later,
their
Smith
approached
visit.
“I[‘m] not leaving.”
Id.
Protesting,
to
the
and
Funck
Plaintiff
and
stated,
Id.; see also Smith Decl. ¶ 14 (stating
that Plaintiff refused to leave).
gesturing
Plaintiff
other
tables
The video shows Plaintiff
in
the
visitation
room
and
repeatedly pointing her fingers at Smith, who is hidden from the
camera by a column.
Prison Video 10:30:49–10:31:12.
escorted Funck to another room.
Smith Decl. ¶ 13.
Smith then
As Smith
closed the door behind Funck, Plaintiff got up from the table,
tossed a plate of food in Smith’s direction, and quickly walked
towards
the
exit.
Prison
Video
10:31:23–10:31:28;
Suppl. Statement; Smith Decl. ¶ 16.4
D. Sexton
Smith followed Plaintiff,
and Plaintiff turned towards Smith and raised her right hand in
the
air
as
Smith
approached
her
3
from
behind.
Prison
Video
The video footage lacks audio, but Plaintiff contends, so the Court
assumes, that this is when Plaintiff made the comment to Smith.
4
Plaintiff disputes Smith’s claims that Plaintiff threw the plate at
Smith and that peanuts struck Smith in the face, but Plaintiff
concedes that she threw the plate “like a Frisbee to the side of”
Smith.
Pl.’s Resp. to Def.’s Statement of Material Facts ¶ 21, ECF
No. 21-1. The video footage does not “clearly depict[]” which account
is true, so the Court accepts Plaintiff’s version. Cf. Shaw v. City
of Selma, 884 F.3d 1093, 1097 n.1 (11th Cir. 2018). Whether Plaintiff
threw the plate at Smith or threw it beside Smith, it is undisputed
that Plaintiff threw the plate in Smith’s direction.
5
10:31:26–10:31:28.5
Smith
then
grabbed
pushed her against a nearby wall.
Plaintiff’s
arms
and
Id. at 10:31:28–10:31:30.
Another correctional officer assisted Smith.
Smith Decl. ¶ 21.
Although the video footage shows the struggle against the
wall
in
the
visitation
room,
everything that happened.
it
does
not
clearly
depict
Plaintiff contends that Smith pushed
her to the ground, placed a boot and hand on her, scratched her,
and hit her in the face.
D. Sexton Suppl. Statement.
Smith
contends that Plaintiff dropped to the floor and began to scream
and to slap and kick Smith.
Smith Decl. ¶ 20.
disputes striking Plaintiff.
Id. ¶ 24.
Smith also
Although courts are
permitted to accept facts that are “clearly depicted” by a video
recording, courts must accept the plaintiff’s version as true
when the video is unclear and there is conflicting evidence on
the issue.
Cir. 2018).
Shaw v. City of Selma, 884 F.3d 1093, 1097 n.1 (11th
The Court thus assumes for purposes of this motion
that Plaintiff’s version of these facts is true.
As
the
struggle
ensued,
Funck
re-entered
room and approached Smith from behind.
visitation
The other correctional
officer then turned around and removed Funck
Smith Decl. ¶¶ 22 & 23.
the
from the area.
Shortly thereafter, Plaintiff and Smith
exited the visitation room.
The video shows that the encounter
5
It is unclear from the video footage whether Plaintiff raised a fist,
as Smith claims, Smith Decl. ¶ 17, or just her hand.
Plaintiff
disputes that she raised her fist, so the Court assumes that Plaintiff
raised her hand. Cf. Shaw, 884 F.3d at 1097 n.1.
6
between Plaintiff and Smith lasted approximately one and a half
minutes from when Smith grabbed Plaintiff until they exited the
visitation room.
Prison Video 10:31:28–10:33:02.
allowed to leave the Prison.
Plaintiff was
Smith notified law enforcement of
the incident and later swore out an arrest warrant for Plaintiff
for committing simple battery.
Smith Decl. ¶ 30.
Plaintiff
then brought this action.
DISCUSSION
Plaintiff
Smith:
asserts
(1) false
arrest
the
following
under
the
§
1983
Fourth
claims
Amendment
against
based
on
Smith seizing Plaintiff; (2) excessive force under the Fourth
Amendment based on the manner in which Smith seized Plaintiff;
and (3) retaliation under the First Amendment based on Smith
terminating
Plaintiff
Plaintiff’s
commented
to
visit
Smith
and
about
seizing
the
Plaintiff
Prison’s
after
procedures.
Smith contends that she is entitled to qualified immunity.
I.
Qualified Immunity
Qualified immunity protects government officials engaged in
discretionary
functions
“from
liability
for
civil
damages
insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person
would
have
known.”
Pearson
v.
Callahan,
555
U.S.
223,
231
(2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
“Qualified immunity balances two important interests—the need to
7
hold
public
officials
accountable
when
they
exercise
power
irresponsibly and the need to shield officials from harassment,
distraction,
and
reasonably.”
Id.
the
plainly
law.’”
liability
when
they
perform
their
duties
“When properly applied, it protects ‘all but
incompetent
or
those
who
knowingly
violate
the
Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011) (quoting
Malley v. Briggs, 475 U.S. 335, 341 (1986)).
Qualified immunity
does not protect an officer who knew or reasonably should have
known
that
her
actions
constitutional rights.
would
violate
the
plaintiff’s
Carter v. Butts Cty., 821 F.3d 1310,
1319 (11th Cir. 2016).
Plaintiff does not dispute that
discretionary
function
when
the
Smith was
challenged
engaged
conduct
in a
occurred.
Therefore, Plaintiff must demonstrate that qualified immunity is
not appropriate by showing that the facts viewed in the light
most
favorable
constitutional
acted.
to
right
her
establish
that
was
that
clearly
Smith
established
violated
when
a
Smith
See, e.g., Perez, 809 F.3d at 1218 (explaining two-part
qualified immunity inquiry).
All material fact disputes must be
resolved in Plaintiff’s favor; her evidence must be believed so
that
her
“best
case”
is
before
the
Court.
Stephens
v.
DeGiovanni, 852 F.3d 1298, 1313–14 (11th Cir. 2017) (quoting
Bates v. Harvey, 518 F.3d 1233, 1239 (11th Cir. 2008)).
8
II.
Fourth Amendment Claims
A.
False Arrest
A law enforcement officer violates the Fourth Amendment if
she makes an arrest without probable cause.
Conversely, the
existence of probable cause at the time of an arrest is an
absolute
bar
Kingsland
v.
2004).6
looks
to
a
City
Fourth
of
Amendment
Miami,
382
claim
F.3d
for
1220,
false
1226
arrest.
(11th
Cir.
Whether probable cause exists is an objective test that
to
whether
the
“the
knowledge,
of
“totality
of
the
circumstances”
to
determine
the
officer’s
facts
and
circumstances
within
which
[the
officer]
reasonably
has
trustworthy
information, would cause a prudent person to believe, under the
circumstances
shown,
that
the
suspect
has
committing, or is about to commit an offense.”
committed,
is
Id. (quoting
Rankin v. Evans, 133 F.3d 1425, 1435 (11th Cir. 1998)).
The
precise issue for the Court to decide today in the qualified
immunity context is not whether Smith had probable cause, but
whether she had arguable probable cause to seize Plaintiff for
any offense.
immunity.
If Smith did, then she is entitled to qualified
Id. at 1232; Brown v. City of Huntsville, 608 F.3d
724, 734–35 (11th Cir. 2010).
Arguable probable cause exists if
“reasonable officers in the same circumstances and possessing
6
Smith concedes that the lawfulness of Plaintiff’s seizure depends on
probable cause even though she also submits that she did not “arrest”
Plaintiff.
9
the
same
knowledge”
as
the
arresting
officer
believed that probable cause existed to arrest.”
“could
have
Kingsland, 382
F.3d at 1232 (quoting Von Stein v. Brescher, 904 F.2d 572, 579
(11th Cir. 1990)).
The existence of probable cause or arguable
probable cause depends on the elements of the alleged crime and
the operative facts.
that
she
had
Brown, 608 F.3d at 735.
arguable
probable
committed simple assault.
cause
to
Smith contends
believe
Plaintiff
The Court agrees.
Under Georgia law, a person commits simple assault if she
“commits an act which places another in reasonable apprehension
of immediately receiving a violent injury.”
O.C.G.A. § 16-5-
20(a)(2).
if
A
demonstration
simple
of
assault
violence,
“is
coupled
complete
with
an
there
apparent
is
a
present
ability to inflict injury so as to cause the person against whom
it is directed reasonably to fear that [she] will receive an
immediate violent injury unless [she] retreats to secure [her]
safety.”
Daniels v. State, 681 S.E.2d 642, 644 (Ga. Ct. App.
2009) (quoting In re D.B., 644 S.E.2d 305, 307 (Ga. Ct. App.
2007)).
In Abercrombie v. Beam, No. 17-13930, 2018 WL 1341535
(11th Cir. 2018) (per curiam), a panel of the Eleventh Circuit
agreed with a district court’s finding that “angrily throwing [a
paper] invoice in someone’s face could potentially constitute a
‘demonstration
of
under
law.
Georgia
violence’”
Id.
at
for
*4
10
purposes
(quoting
of
simple
Order
Den.
assault
Mot.
J.
Pleadings 13, Abercrombie v. Beam, No. 1:15-CV-4452 (N.D. Ga.
June 9, 2016), ECF No. 15); see also Trzepacz v. State, 523
S.E.2d 599, 599 (Ga. Ct. App. 1999) (affirming conviction for
simple assault where the defendant angrily threw a wooden board
at the victim, causing
the victim to step back in order to
avoid being hit); In re T.Y.B., 654 S.E.2d 688, 689–90 (Ga. Ct.
App. 2007) (affirming conviction for simple assault where the
defendant angrily cursed and screamed at his mother, took a pot
of boiling water off of the stove, and stood a short distance
from
her
while
staring
at
her).
The
panel
opinion
in
Abercrombie is persuasive here.7
A
reasonable
officer
in
Smith’s
position
could
have
believed that Plaintiff demonstrated violence by throwing the
plate in the officer’s direction and turning towards the officer
and raising her hand.
A reasonable officer could have believed
that these acts were overt attempts or threats to strike the
officer with the plate or with Plaintiff’s hand.8
7
Likewise, the
In the end, the Abercrombie panel reversed the district court’s
finding of qualified immunity even though the panel agreed that
throwing paper invoices in someone’s face would provide arguable
probable cause to arrest for simple assault. The panel found a jury
question existed on whether the officer had reasonably trustworthy
information
that
the
suspect
actually
threw
the
invoices.
Abercrombie, 2018 WL 1341535, at *5.
Here, Smith had personal
knowledge of Plaintiff’s conduct.
8
This is true even if Smith was not facing Plaintiff when she threw
the plate in Smith’s direction. If Smith did not see Plaintiff throw
the plate, she still could have reasonably concluded that Plaintiff
was the one who threw the plate because Plaintiff had a motive to
throw the plate, the plate landed on the ground near Smith, Plaintiff
11
proximity
“could
between
likewise
inflict
Smith
convey
injury’”
for
and
‘an
Plaintiff
apparent
purposes
of
during
and
simple
the
present
assault
encounter
ability
in
to
Georgia.
Abercrombie, 2018 WL 1341535, at *4 (quoting Order Den. Mot. J.
Pleadings 13, Abercrombie, No. 1:15-CV-4452, ECF No. 15); see
id. (finding proximity necessary for person to throw invoices in
another’s
face
could
inflict injury).
convey
apparent
and
present
ability
to
Because Smith had at least arguable probable
cause to seize Plaintiff for simple assault, Smith is entitled
to qualified immunity on Plaintiff’s false arrest claim.9
B.
Excessive Force
The
Fourth
Amendment
prohibits
officers
from
using
excessive, i.e. unreasonable, force in the course of a seizure.
Graham
v.
Connor,
490
U.S.
386,
395
(1989).
In
evaluating
whether an officer’s use of force was unreasonable, courts must
consider
“the
severity
of
the
crime
at
issue,
whether
the
suspect poses an immediate threat to the safety of the officers
was the only person physically situated to throw the plate in Smith’s
direction, and Smith saw Plaintiff quickly walking away from the
scene.
Under these facts, a reasonable officer in Smith’s position
could have believed that someone threw the plate at the officer and
that Plaintiff was the culprit.
9
Plaintiff argues that the fact that she raised her hand towards Smith
cannot be considered in the probable cause analysis because she was
justified in resisting an unlawful seizure. This argument is without
merit. Throwing the plate in Smith’s direction very likely gave Smith
actual probable cause to seize Plaintiff for simple assault, so
Plaintiff likely had no right to resist the seizure. Moreover, Smith
most certainly had arguable probable cause to seize Plaintiff based on
the plate alone and, therefore, is entitled to qualified immunity
without considering Plaintiff’s alleged efforts to resist.
12
or
others,
and
whether
[the
suspect]
is
actively
resisting
arrest or attempting to evade arrest by flight.”
Id. at 396.
Courts
[law
enforcement]
split-second
judgments—in
must
officers
also
are
consider
often
forced
“the
to
fact
make
that
circumstances that are tense, uncertain, and rapidly evolving—
about the amount of force that is necessary in a particular
situation.”
Id. at 397.
In cases involving the use of force
within jails, courts must also give some deference to prison
administrators’ concerns about institutional security.
Kingsley
v. Hendrickson, 135 S. Ct. 2466, 2474 (2015); Bell v. Wolfish,
441 U.S. 520, 547 (1979); see also United States v. Prevo, 435
F.3d 1343, 1347 (11th Cir. 2006) (analyzing warrantless searches
of
vehicles
facility
in
in
the
light
visitors
of
parking
need
for
lot
of
a
institutional
correctional
security).
Moreover, even if Smith’s use of force was unreasonable, Smith
is still entitled to qualified immunity unless no reasonable
officer under the same circumstances could have believed that
Smith’s use of force was reasonable.
Stephens, 852 F.3d at
1326–27.
Viewed in the light most favorable to Plaintiff, the facts
show that Plaintiff, while in a room at the Prison with at least
seven other inmates and their visitors, threw a plate in Smith’s
direction
and
hurriedly
moved
towards
the
exit.
As
Smith
approached Plaintiff from behind, Plaintiff turned towards Smith
13
and raised her hand.
At that time, Smith grabbed Plaintiff’s
arms, pushed her onto a nearby wall and onto the ground.
then
placed
her
hands
and
boot
on
Plaintiff,
Plaintiff, and hit Plaintiff in the face.
Smith
scratched
Plaintiff claims she
was injured but pointed to no evidence—testimony, affidavits, or
otherwise—of those injuries.
Considering
Smith’s
use
the
of
Graham
force
factors,
was
the
Court
unreasonable.
doubts
First,
that
Plaintiff
committed acts that likely constitute simple assault, which is
an attempted battery under Georgia law.
Not only would the
nature of this offense give officers a reasonable belief that
some use of force in seizing Plaintiff was necessary, but the
manner in which Plaintiff committed it would as well.
demonstrated
a
officers
throwing
turning
by
towards
willingness
the
Smith
to
use
plate
and
force
in
raising
against
Smith’s
her
Plaintiff
correctional
direction
hand.
For
and
the
by
same
reasons, officers could have reasonably believed that Plaintiff
posed a risk to the safety of Smith and to other correctional
officers.
Though
Plaintiff
did
not
forcefully
resist
the
seizure, her statement in the Incident Report reveals that she
was
screaming
and
yelling
D. Sexton Suppl. Statement.
that
she
suffered
any
for
Smith
to
get
off
of
her.
And Plaintiff put forth no evidence
significant
physical
injuries.
A
reasonable officer could believe that grabbing Plaintiff, moving
14
her to a nearby wall, shoving her to the ground, placing their
hands and boot on Plaintiff, and scratching her and hitting her
in the course of the seizure was necessary to subdue Plaintiff,
who was verbally resisting and would not submit.
Thus, the
Graham factors support the conclusion that Smith’s use of force
was not unreasonable.
Institutional
concerns
also
force was not unreasonable.
suggest
that
Smith’s
use
of
Smith and the other correctional
officer were outnumbered by visitors and unrestrained inmates
during
the
encounter.
A
prolonged
confrontation
with
one
visitor distracts the officers from monitoring the rest of the
visitation
room.
In
such
circumstances,
inmates
and
their
visitors have a greater ability to pass contraband between one
another.
And
inmates
have
a
greater
officers, the visitors, or each other.
ability
to
attack
the
Indeed, Funck approached
Smith from behind and tried to interfere with Smith’s seizure of
Plaintiff.
Reasonable correctional officers could believe that
quickly and forcefully quelling the disturbance was necessary so
that they could continue effectively monitoring the security of
the Prison and the safety of its occupants.
Even
assuming,
however,
that
Smith’s
use
of
force
was
unreasonable, Plaintiff failed to establish that what Smith did
under
Plaintiff’s
established rights.
version
of
the
facts
violated
her
clearly
Plaintiff cited no similar cases, and this
15
is
certainly
not
a
case
of
obvious
clarity.
Because
a
reasonable correctional officer under these circumstances could
believe that Smith’s use of force was not excessive, Smith is
entitled to qualified immunity on Plaintiff’s excessive force
claim.
III. First Amendment Claim
Plaintiff contends that Smith violated her First Amendment
rights
by
terminating
Plaintiff’s
visit
with
Funck
in
retaliation for Plaintiff’s comment to Smith about the Prison’s
procedures.10
To establish a prima facie case of retaliation,
Plaintiff
must
show:
protected
speech;
(2)
(1)
she
Smith’s
engaged
in
allegedly
constitutionally
retaliatory
actions
would likely deter a person of ordinary firmness from engaging
in such speech; and (3) a causal relationship between Smith’s
retaliatory actions and the protected speech.
532 F.3d 1270, 1276 (11th Cir. 2008).
immunity,
Smith’s
the
question
position
could
is
have
whether
Smith v. Mosley,
For purpose of qualified
correctional
reasonably
believed
officers
that
in
Smith’s
actions would not violate Plaintiff’s First Amendment rights.
10
Plaintiff also claims that Smith seized her in retaliation for
protected speech.
Because the Court finds that Smith had arguable
probable cause to seize Plaintiff for simple assault, Smith is
entitled to qualified immunity on Plaintiff’s First Amendment
retaliation claim arising out of that seizure as well. See Gates v.
Khokhar, 884 F.3d 1290, 1298 (11th Cir. 2018) (“[W]hen an officer has
arguable probable cause to arrest, [she] is entitled to qualified
immunity both from Fourth Amendment claims for false arrest and from
First Amendment claims stemming from the arrest.”).
16
See Castle v. Appalachian Tech. Coll., 631 F.3d 1194, 1199 (11th
Cir. 2011).
First,
it
is
not
clear
that
a
reasonable
correctional
officer in Smith’s position would have known that Plaintiff’s
comment was protected speech.
that
the
verbal
First
criticism
Amendment
and
Generally, it is well established
“protects
challenge
a
significant
directed
at
police
amount
of
officers.”
See Skop v. City of Atlanta, 485 F.3d 1130, 1139 (11th Cir.
2007) (quoting Houston v. Hill, 482 U.S. 451, 461–63 (1987)).
But it is also clear that prison administrators are “accorded
latitude in the administration of prison affairs” that includes
the ability, at least as it relates to inmates, to restrict
speech that may otherwise be protected.
See Mosley, 532 F.3d at
1277 (quoting Cruz v. Beto, 405 U.S. 319, 321 (1972)).
And
Plaintiff identified no authority clearly establishing that a
prison
visitor’s
First
Amendment
rights
are
coextensive
with
those of a citizen making the same remarks on the street.
A
prison certainly has the right to adopt rules to maintain order
while a visitor is on prison grounds even if those rules may
have some impact on the visitor’s speech.
Second, even if Smith should have known that Plaintiff’s
comments constituted protected speech, that does not end the
qualified immunity inquiry.
When “the facts assumed for summary
judgment purposes . . . show mixed motives (lawful and unlawful
17
motivations)
and
pre-existing
law
does
not
dictate
that
the
merits of the case must be decided in [the] plaintiff’s favor,
the defendant is entitled to
[qualified]
immunity.”
Holston, 94 F.3d 1528, 1535 (11th Cir. 1996).
Foy v.
In this case, the
indisputable evidence shows that Plaintiff violated the Prison’s
procedures and, therefore, that Smith had a lawful reason to
terminate
Plaintiff’s
visit.
Smith
contends
that
she
was
motivated by her intent to maintain order and security within
the
Prison,
Smith
Decl.
¶ 26,
and
evidence suggesting otherwise.
been
partially
pointed
to
motivated
no
cases
Plaintiff
pointed
to
no
Even assuming Smith might have
by
Plaintiff’s
clearly
comment,
establishing
that
Plaintiff
Smith
would
violate Plaintiff’s First Amendment rights by terminating the
visit
given
that
legitimate reason.
Smith
was
also
motivated
by
a
clearly
See Johnson v. City of Fort Lauderdale, 126
F.3d 1372, 1379 (11th Cir. 1997) (reversing denial of qualified
immunity on First Amendment claim where, assuming the defendant
officials
had
a
retaliatory
motive
when
they
demoted
the
plaintiff, officials’ putative reason for demoting plaintiff was
supported
by
established
plaintiff
indisputable
that
under
the
those
evidence
officials
and
should
circumstances).
it
not
was
have
not
clearly
demoted
Therefore,
Smith
the
is
entitled to qualified immunity on Plaintiff’s retaliation claim.
18
CONCLUSION
Because Plaintiff failed to demonstrate, under her version
of
the
facts,
that
Smith
violated
Plaintiff’s
clearly
established First or Fourth Amendment rights, Smith is entitled
qualified
immunity.
Therefore,
Smith’s
motion
for
summary
judgment (ECF No. 18) is granted.
IT IS SO ORDERED, this 16th day of April, 2018.
S/Clay D. Land
CLAY D. LAND
CHIEF U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA
19
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