James Hollins v. Warden, USP, Atlanta , 540 F. App'x 937 ( 2013 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-11409
Non-Argument Calendar
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D.C. Docket No. 1:12-cv-04119-AT
JAMES HOLLINS,
Plaintiff-Appellant,
versus
CHARLES E. SAMUALS, JR., etc., et al.,
Defendants,
WARDEN, USP ATLANTA,
ASSOCIATE WARDEN,
FNU HUBBARD,
Education Sup.,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Georgia
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(October 1, 2013)
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Before MARCUS, WILSON and ANDERSON, Circuit Judges.
PER CURIAM:
James Hollins, a prisoner proceeding pro se, appeals the district court’s sua
sponte dismissal of his amended complaint, brought pursuant to Bivens v. Six
Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), for
failure to state a claim upon which relief may be granted. Hollins argues on appeal
that his complaint properly made a prima facie showing of the elements of a First
Amendment retaliation claim. After thorough review, we affirm.
A district court must screen a civil action in which a prisoner seeks redress
from a governmental entity, officer, or employee, and must dismiss the complaint
if it fails to state a claim upon which relief may be granted. 28 U.S.C. § 1915A(a),
(b)(1). We review de novo a sua sponte dismissal for failure to state a claim under
§ 1915A(b)(1), viewing the allegations in the complaint as true. Boxer X v. Harris,
437 F.3d 1107, 1110 (11th Cir. 2006). These dismissals are governed by the same
standards that apply to dismissals for failure to state a claim under Fed.R.Civ.P.
12(b)(6). See Jones v. Bock, 549 U.S. 199, 215 (2007) (discussing the standards
that apply to sua sponte dismissals, including dismissals under 28 U.S.C. §
1915A(b)(1), in the context of Fed.R.Civ.P. 12(b)(6) dismissals). To survive
dismissal for failure to state a claim, “a complaint must contain sufficient factual
matter, accepted as true, to state a claim to relief that is plausible on its face.”
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Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotations omitted). A plaintiff must
assert “more than labels and conclusions, and a formulaic recitation of the elements
of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007). Pro se pleadings are held to a less stringent standard than pleadings drafted
by attorneys and are, therefore, liberally construed. Boxer X, 437 F.3d at 1110.
In Bivens, the Supreme Court recognized an implied cause of action for
damages against federal officials based on a violation of a federal constitutional
right. Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 66 (2001). To state a Bivens
claim, a plaintiff must show that he was deprived of a constitutional right. Powell
v. Lennon, 914 F.2d 1459, 1463 (11th Cir. 1990). We’ve considered a Bivens
claim for an alleged First Amendment violation. See Alexander v. Hawk, 159 F.3d
1321, 1322 (11th Cir. 1998) (in the context of prison limits on pornography).
Despite their incarceration, prisoners retain First Amendment rights because
“[p]rison walls do not form a barrier separating prison inmates from the protections
of the Constitution.” Thornburgh v. Abbot, 490 U.S. 401, 407 (1989). However,
prisoners only retain those rights to the extent that they are “not inconsistent with
[their] status as [prisoners] or with the legitimate penological objectives of the
corrections system.” Pell v. Procunier, 417 U.S. 817, 822 (1974). For example,
the constitutional “freedom of association is among the rights least compatible with
incarceration.” Overton v. Bazzetta, 539 U.S. 126, 131 (2003).
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To prove First Amendment retaliation, an inmate must show that: (1) his
speech or act was constitutionally protected, (2) he suffered an adverse action from
prison officials that would deter a person of ordinary firmness from engaging in the
speech or act, and (3) the protected speech or act and adverse action were causally
connected. Smith v. Mosley, 532 F.3d 1270, 1276 (11th Cir. 2008); see Moton v.
Cowart, 631 F.3d 1337, 1342 (11th Cir. 2011) (“An inmate must establish . . . ‘his
speech or act was constitutionally protected . . . .’”). We’ve routinely held that a
prisoner’s complaints about prison conditions, via administrative grievances,
lawsuits, and the like are protected under the First Amendment. Smith, 532 F.3d at
1276 (addressing grievances about the conditions of imprisonment); Al-Amin v.
Smith, 511 F.3d 1317, 1333-34 (11th Cir. 2008) (addressing a prison’s opening of
mail from attorneys outside the inmate’s presence).
Here, Hollins’s amended complaint alleged that he was sending wages from
his prison employment overseas to a Filipina nationalist student. He claimed that,
in violation of the First Amendment, prison officials retaliated against him by
reducing his wages, and later, terminating his employment. Based on these
allegations, we agree that this complaint established the second element of a claim
for retaliation in violation of the First Amendment because it alleged that he
suffered an adverse action -- the loss of wages and employment -- that would deter
a person of ordinary firmness from exercising First Amendment rights. It also
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satisfied the third element, because it alleged a causal relationship between the
adverse action and his actions of sending his wages overseas.
However, as the district court concluded, the amended complaint did not
establish the first element of a retaliation claim. See id. This is because as a
prisoner, Hollins has a limited right to freedom of association, see Overton, 539
U.S. at 131 (“[F]reedom of association is among the rights least compatible with
incarceration.”), and Hollins has not shown that the act of sending his money to a
Filipina nationalist was conduct protected by the First Amendment. Indeed, we’ve
found no authority holding that the First Amendment protects a prisoner’s conduct
that involves no form of complaint or petition for redress and does not even
involve verbal or written communication with someone. Rather, Hollins asserts
that he, as a prisoner, has a right to transfer money to someone outside the prison
and outside the country. This type of conduct is too far removed from the type of
communicative conduct -- primarily literal speech -- that courts have recognized as
protected under the First Amendment in the prison setting. See Jones, 433 U.S. at
130-31 (holding that “First Amendment speech rights [we]re barely implicated” by
a prison policy prohibiting the delivery of union publications mailed in bulk to
inmates for redistribution among other prisoners). Accordingly, because Hollins
did not show that his conduct was constitutionally protected, his amended
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complaint did not establish a First Amendment retaliation claim and the amended
complaint failed to state a claim upon which relief may be granted.
AFFIRMED.
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