CARTER v. ALLEN et al

Filing 64

ORDER ADOPTING IN PART AND REJECTING IN PART 59 Report and Recommendations; granting in part and denying in part 43 Motion for Summary Judgment. Summary judgment is GRANTED as to Defendant Sealy and DENIED as to Defendants Anderson, Allen, Barber, and Westlake. Ordered by US DISTRICT JUDGE HUGH LAWSON on 8/2/2016. (aks)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
VALDOSTA DIVISION

DEMETRUIS DELFON CARTER,
Plaintiff,
v.

7:15-CV-13-HL-TQL

Warden MARTY ALLEN, et al.,
Defendants.
ORDER
This matter is before the Court on the Recommendation of United States
Magistrate Judge Thomas Q. Langstaff (Doc. 59), entered on May 26, 2016, in
which he recommends that Defendants’ Motion for Summary Judgment (Doc. 43)
be granted in part and denied in part.

Specifically, he recommends that

Defendants’ motion be granted as to Plaintiff’s claims against Defendants Allen,
Anderson, and Sealy and denied as to Plaintiff’s claims against Defendants
Barber and Westlake. Plaintiff filed an objection (Doc. 62), and the Court has
made a de novo review of the Recommendation. For the reasons discussed
herein, the Recommendation is adopted in part and rejected in part.
I.

FACTUAL BACKGROUND
Plaintiff Demetruis Delfon Carter is an inmate housed at Valdosta State

Prison (“VSP”). This lawsuit arises out of a series of events following Plaintiff’s
filing of a grievance against Defendant Rantavious Anderson for sexual

harassment.1

Defendant Marty Allen has been the warden at VSP since

February 1, 2013. On April 2, 2014, Defendant Tyler Westlake was an assistant
supervisor over the Correctional Emergency Response Team (“CERT”) at VSP.
Defendants Rantavious Anderson, John Barber, and Gregory Sealy are
members of the CERT team at VSP.
A.

March 27, 2014 Incident

On March 27, 2014, Defendants Westlake and Anderson conducted a pat
search of Plaintiff, during which Defendant Anderson allegedly “grabbed
[Plaintiff’s] buttocks” in a sexual manner. (Doc. 43-1, Plaintiff Dep., p. 20; Doc.
43-3, Anderson Aff., ¶ 5). In response to the contact, Plaintiff told Defendant
Anderson he was going to file a grievance, which caused Defendant Anderson to
get “angry” and place Plaintiff in administrative segregation. (Doc. 43-1, Plaintiff
Dep., pp. 28–29).

Defendant Anderson contests Plaintiff’s version of the

incident, claiming instead that Plaintiff refused to let Defendant Anderson conduct
the pat search, that Defendant Anderson conducted the pat search anyway, and
that he then placed Plaintiff in administrative segregation for insubordination.
(Doc. 43-3, Anderson Aff., ¶ 4).
Plaintiff filed a grievance against Defendant Anderson, which was referred
to the Internal Investigations Unit on April 1, 2014. (Doc. 1-1, p. 5). According to
Defendant Anderson, he did not know that the grievance had been filed until he

1

The facts underlying this grievance are set out in subsection A, “March 27, 2014
Incident.”
2

was asked to provide a response to the grievance on April 4, 2014. (Doc. 43-3,
Anderson Aff., ¶ 8). The split shift supervisor at VSP, Carlos Jones, stated that it
takes between two and three days for an officer to receive a request for an
answer following the filing of a grievance against him, and there is “no way that
Officer Anderson would have known about the grievance the very next day at
8:00 AM . . . .” (Doc. 43-7, Jones Aff., ¶¶ 2, 6–7).
B.

April 2, 2014 Incident

On April 2, 2014, Defendants Barber and Sealy conducted a shakedown of
Dormitory E, where Plaintiff was housed. (Doc. 43-4, Barber Aff., ¶ 3; Doc. 45-1,
Sealy Aff., ¶ 3). Defendants Barber and Sealy searched Plaintiff’s cell and pat
searched Plaintiff during the course of the shakedown. (Doc. 43-4, Barber Aff.,
¶¶ 5–6; Doc. 45-1, Sealy Aff., ¶¶ 5–6). It is undisputed that Defendant Westlake
was present and that he “stood or sat” near a table in or around Plaintiff’s cell
while Defendants Barber and Sealy searched Plaintiff’s cell.

(Doc. 43-6,

Westlake Aff., ¶ 4).
Plaintiff alleges that Defendant Westlake stood at a table with Defendant
Anderson while he was being pat searched. (Doc. 43-1, Plaintiff Depo., p. 34).
At some point, Defendant Westlake walked over and gave Defendant Barber a
soap dish that Defendant Westlake had in his vest. (Doc. 43-1, Plaintiff Depo.,
pp. 34–35). As he was doing this, Defendant Westlake told Plaintiff, “this is for
filing that grievance on Officer Anderson.” (Doc. 43-1, Plaintiff Depo., p. 35).
Defendant Barber then broke open the soap dish, broke the soap in half, and
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found a cell phone. (Doc. 43-1, Plaintiff Depo., p. 35). Defendant Anderson
looked on and smiled at Plaintiff. (Doc. 43-1, Plaintiff Depo., pp. 41–42).
Defendants’ version of this shakedown differs from Plaintiff’s version.
Defendant Barber claims that, during the search, he noticed Plaintiff was carrying
a bag with him to the shower. (Doc. 43-4, Barber Aff., ¶ 6). Defendant Barber
searched Plaintiff’s bag with a metal wand, which “went off” over Plaintiff’s soap
dish. (Doc. 43-4, Barber Aff., ¶ 8; Doc. 45-1, Sealy Aff., ¶ 8). Defendant Barber
opened the soap dish and found a cell phone hidden inside of the soap. (Doc.
43-4, Barber Aff., ¶ 9; Doc. 45-1, Sealy Aff., ¶ 9). Defendants Barber, Sealy,
Anderson, and Westlake deny knowing at the time of the shakedown that Plaintiff
had filed a grievance against Defendant Anderson. These Defendants also deny
planting the cell phone in the soap.
Because cell phones are considered contraband, a disciplinary report was
written against Plaintiff for “Possession of a Cell Phone.” (Doc. 43-3, Anderson
Aff., ¶¶ 12–13). Plaintiff’s security was raised to “close,” which means he is in a
close security facility with more violent inmates, can attend the law library only
once per week, has more controlled movements with escorts, and cannot go on
the “big yard” unless he is participating in sports. (Doc. 43-1, Plaintiff Depo., pp.
44–46).
C.

July 21, 2014 Incident

On July 21, 2014, Defendants Allen and Anderson were inspecting
Plaintiff’s dorm. (Doc. 43-1, Plaintiff Depo., p. 49). Defendant Allen ordered
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Defendant Anderson to pat search Plaintiff’s “whole top range.”
Plaintiff Depo., p. 49).

(Doc. 43-1,

Although Plaintiff allowed Defendant Anderson to pat

search him, Plaintiff afterward revealed to Defendant Allen that he had previously
filed a grievance against Defendant Anderson and that he did not feel
comfortable with Defendant Anderson touching him. (Doc. 43-1, Plaintiff Depo.,
pp. 49–50). According to Plaintiff and the affidavit of inmate Julio Rodriguez,
Defendant Allen “got angry and ordered [Plaintiff] placed in segregation,”
although he did not file disciplinary charges against Plaintiff. (Doc. 43-1, Plaintiff
Depo., p. 49; Doc 48-7, Rodriguez Aff.). Defendant Allen does not recall this
incident. (Doc. 43-2, Allen Aff.).
II.

RECOMMENDATION
Plaintiff, proceeding pro se, brought this action pursuant to 42 U.S.C. §

1983 on January 30, 2015. (Doc. 1). Plaintiff asserts that Defendants retaliated
against him for filing the initial grievance against Defendant Anderson, in violation
of his First Amendment rights.

Defendants filed this Motion for Summary

Judgment on January 25, 2016 (Doc. 43), to which Plaintiff responded (Docs. 44,
48) and Defendants replied (Doc. 56). Defendants argue that they are entitled to
summary judgment because: (A) Plaintiff cannot establish a First Amendment
violation; (B) Plaintiff is barred from recovering compensatory or punitive
damages; and (C) Defendants are entitled to qualified immunity.

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A.

First Amendment Violation

In order to state a § 1983 claim for retaliation in violation of the First
Amendment, a plaintiff must first establish that his speech was constitutionally
protected.

Bennett v. Hendrix, 423 F.3d 1247, 1250 (11th Cir. 2005).

The

Parties concede that the filing of a grievance is constitutionally protected speech;
thus, Plaintiff has satisfied the first element of his § 1983 claims against all
Defendants.
Plaintiff must next establish that Defendants’ retaliatory conduct adversely
affected his protected speech. Bennett, 423 F.3d at 1250. The Magistrate Court
concluded that “a reasonable juror could find that a person of ordinary firmness
would likely be deterred from filing grievances” based on the allegedly retaliatory
conduct of Defendants Anderson, Barber, Sealy, and Westlake. (Doc. 59, p. 13).
However, “a reasonable juror could not find that a person of ordinary firmness
would likely be deterred from filing grievances” as a result of Defendant Allen’s
allegedly retaliatory conduct. (Doc. 59, p. 13). Thus, summary judgment was
recommended in favor of Defendant Allen.
Finally, Plaintiff must establish a causal connection between Defendants’
retaliatory actions and the adverse effect on Plaintiff’s speech. Bennett, 423 F.3d
at 1250. The Magistrate Court concluded that an issue of material fact remained
as to whether there was a causal connection between Plaintiff filing a grievance
against Defendant Anderson and Defendants Barber and Westlake planting the
contraband cell phone on Plaintiff.

Thus, the court recommended denying
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summary judgment as to Defendants Barber and Westlake. However, the court
recommended granting summary judgment in favor of Defendants Sealy and
Anderson, because Plaintiff failed to adequately rebut evidence that these
Defendants did not know of the grievance against Defendant Anderson at the
time of the shakedown.

The Recommendation explains that “the evidence

merely shows that Defendant Sealy was present during the shakedown.” (Doc.
59, p. 15). As to Defendant Anderson, “a smile from a distance is not enough to
create a causal connection as to [Defendant Anderson].” (Doc. 59, p. 15).
B.

Compensatory and Punitive Damages

An incarcerated plaintiff cannot recover compensatory or punitive damages
for constitutional violations unless he can demonstrate more than a de minimis
physical injury.

Brooks v. Warden, 800 F.3d 1295, 1307 (11th Cir. 2015).

Because Plaintiff has not alleged a physical injury, the Magistrate Court
concluded that Plaintiff is limited to nominal damages for his surviving claims.
C.

Qualified Immunity

A public official is only entitled to qualified immunity if (1) he was acting
within the scope of his discretionary authority when the allegedly wrongful
conduct occurred, and (2) his conduct did not violate a plaintiff’s clearly
established statutory or constitutional rights of which a reasonable person would
have known.

The Magistrate Court concluded that Defendants Barber and

Westlake, the only Defendants remaining after the court’s analysis of Plaintiff’s
First Amendment retaliation claim, are not entitled to qualified immunity. While
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they were acting within their discretionary authority at all times relevant to this
action, the law is clear that the filing of a grievance is a constitutionally protected
act. The court concluded that a question of fact remains as to whether these
Defendants were on notice that planting contraband on an inmate in retaliation
for engaging in a constitutionally protected act would violate that inmate’s
constitutional rights.
III.

PLAINTIFF’S OBJECTIONS
A.

First Amendment Violation

Plaintiff objects to the Magistrate Court’s recommendation that summary
judgment be granted in favor of Defendants Allen, Sealy, and Anderson. With
respect to Defendant Allen, Plaintiff contends that transfer to administrative
segregation is an adverse action.

Because Defendant Allen committed an

adverse act, and because he knew at the time he ordered that Plaintiff be placed
in segregation that Plaintiff had filed a grievance against Defendant Anderson,
Plaintiff argues that a question of fact remains as to whether this constitutes
retaliation in violation of the First Amendment.
With respect to Defendant Anderson, Plaintiff points out that he conversed
with Defendant Westlake immediately before Defendant Westlake walked over to
Plaintiff and allegedly planted the contraband.

Further, Defendant Anderson

smiled at Plaintiff as Defendant Westlake planted the contraband.

Plaintiff

argues that this smile is sufficient to create a causal connection between the
filing of the grievance and the planting of the contraband. Plaintiff contends that
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Defendant Sealy is not entitled to summary judgment because he failed to report
the conduct of Defendants Barber and Westlake after witnessing it.
B.

Compensatory and Punitive Damages

In his Objection, Plaintiff maintains that he is entitled to punitive damages
based on Defendants’ conduct, but he makes no additional argument on this
point.
IV.

DISCUSSION
A.

First Amendment Violation
1.

Defendants Sealy, Barber, and Westlake

Upon review, the Recommendation is accepted and adopted with respect
to these three Defendants.

Defendants’ Motion for Summary Judgment is

GRANTED as to Defendant Sealy and DENIED as to Defendants Barber and
Westlake.
2.

Defendant Anderson

The Court disagrees with the Magistrate Court’s recommendation as to
Defendant Anderson.

The lower court found no causal connection between

Plaintiff’s grievance against Defendant Anderson and the planting of the
contraband on Plaintiff, because there was no evidence that Defendant Anderson
knew that the grievance had been filed and “a smile from a distance is not
enough to create a causal connection.”

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In support of this reasoning, the

Recommendation cited Casey v. Wal-Mart Stores, Inc.2, which found no causal
connection between the plaintiff’s termination and her report of harassment when
she alleged that the store director would stare at her and give her dirty looks.
In addition to the fact that Casey is non-binding on this Court, the facts of
this case are distinguishable in a number of ways. First, the plaintiff in Casey
alleged retaliation in the context of Title VII, not § 1983. Second, the retaliation
claim in Casey is factually dissimilar from the retaliation claim in this case. In
reaching its decision, the court in Casey reasoned that the plaintiff had “not cited
to any authority which construe[d] adverse employment action to include ‘stares
and dirty looks.’” 8 F. Supp. 2d at 1339.
Here, Plaintiff is not asking the Court to hold that Defendant Anderson’s
smile alone supports a cause of action for retaliation. Rather, Plaintiff is asking
the Court to take into consideration the context of Defendant Anderson’s smile—
immediately following a conversation between Defendant Anderson and
Defendant Westlake and while Defendant Westlake was allegedly planting
contraband in Plaintiff’s shower bag “for filing that grievance on Officer
Anderson.” The Court finds that Plaintiff’s testimony creates an issue of material
fact as to whether Defendant Anderson’s conduct constitutes retaliation.

For

these reasons, the Court rejects this portion of the Magistrate Court’s
Recommendation, and DENIES the Motion for Summary Judgment as to
Defendant Anderson.
2

8 F. Supp. 2d 1330 (N.D. Fla. 1998).
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3.

Defendant Allen

The Court also disagrees with the Magistrate Court’s Recommendation as
to Defendant Allen.

Plaintiff alleges that Defendant Allen transferred him to

administrative segregation after Plaintiff told Defendant Allen that he did not feel
comfortable having Defendant Anderson pat him down and that he had
previously filed a grievance against Defendant Anderson for sexual harassment.
The Magistrate Court recommended that summary judgment be granted in favor
of Defendant Allen because “while [he] placed Plaintiff in administrative
segregation, he never filed disciplinary charges against Plaintiff.” (Doc. 59, p.
13).

Because the segregation was administrative, rather than punitive, the

Magistrate Court doubted that a person of ordinary firmness would be deterred
from filing a grievance as a result of the segregation.3
This Court disagrees with the Magistrate Court’s assessment. Although
Plaintiff did not appear deterred by Defendant Allen placing him in administrative
segregation, a person of ordinary firmness likely would be deterred under the
circumstances.

After all, Defendant Allen’s decision to place Plaintiff in

administrative segregation immediately followed Plaintiff explaining that he had
previously filed a grievance against Defendant Anderson.

A recent Eleventh

Circuit decision, which dealt with a plaintiff’s allegation that his First Amendment
3

The test for whether conduct constitutes an “adverse action” with respect to a §
1983 claim based on First Amendment rights is whether the “defendant’s
allegedly retaliatory conduct would likely deter a person of ordinary firmness from
the exercise of First Amendment rights.” Bennett v. Hendrix, 423 F.3d 1247,
1250 (11th Cir. 2005).
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rights were violated when he was subjected to disciplinary4 confinement for filing
a grievance, noted in dicta that “[i]n the prison context, an action comparable to
transfer to administrative segregation would certainly be adverse.” Alvarez v.
Secretary, Florida Dept. of Corrections, No. 15—10506, 2016 WL 1238185, at *6
(11th Cir. March 30, 2016) (citing Thaddeus-X v. Blatter, 175 F.3d 378, 396 (6th
Cir. 1999)).

Plaintiff’s placement in administrative segregation constitutes an

adverse action, and the Recommendation is thus rejected on this point. The
Motion for Summary Judgment is DENIED as to Defendant Allen.
B.

Compensatory and Punitive Damages

Upon review, the Recommendation is accepted and adopted with respect
to the Magistrate Court’s finding that Plaintiff is not entitled to recover
compensatory or punitive damages. Plaintiff has not alleged more than a de
minimis injury, and thus may only recover nominal damages.
C.

Qualified Immunity

The Recommendation’s finding that Defendants Barber and Westlake are
not entitled to qualified immunity on Plaintiff’s First Amendment claim is accepted
and adopted. The reasoning of the Magistrate Court as to the potential immunity
of Defendants Barber and Westlake also applies to Defendants Allen and
Anderson, whose immunity was not addressed in the Recommendation.
Defendants Allen and Anderson were acting within their discretionary authority at

4

The Court acknowledges that the segregation Plaintiff was subjected to was
“administrative” in nature, as opposed to disciplinary.
12

the time of their allegedly unconstitutional conduct. However, Plaintiff’s right to
file a grievance without retaliation was clearly established. A material question of
fact remains as to whether these Defendants actually committed the retaliatory
acts that Plaintiff alleges, and whether they were on notice that their retaliatory
actions would violate Plaintiff’s constitutional rights.
V.

CONCLUSION
For the foregoing reasons, the Recommendation (Doc. 59) is adopted in

part and rejected in part. Defendants’ Motion for Summary Judgment (Doc. 43)
is GRANTED with respect to Defendant Sealy and DENIED with respect to
Defendants Anderson, Allen, Barber, and Westlake. Plaintiff’s potential recovery
is limited to nominal damages. The remaining Defendants are not entitled to
qualified immunity at this stage.
SO ORDERED, this the 2nd day of August, 2016.
/s/ Hugh Lawson_________________
HUGH LAWSON, SENIOR JUDGE
les

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