Michael E. Rowan v. James Harris

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 07-11620 January 4, 2008
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 05-14344-CV-JEM
MICHAEL E. ROWAN,
Plaintiff-Appellant,
versus
JAMES HARRIS,as Warden of Martin County
Correctional Institution and in his individual
capacity,
DEVERE INMAN, individually and as Assistant Warden,
Martin County Correctional Institution,
S. PARKER, individually and as Senior
Classification Officer, Martin County Correctional Institution,
S. PICKETT, individually and as Lieutenant for
Martin County Correctional Institution,
L. HARRIS, individually and as Classification
Officer for Martin County Correctional
Institution,
et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(January 4, 2008)
Before ANDERSON, CARNES and PRYOR, Circuit Judges.
PER CURIAM:
Michael E. Rowan, a prisoner formerly incarcerated at Martin County
Correctional Institution (“MCI”) in Florida, appeals the district court’s dismissal
of his pro se 42 U.S.C. § 1983 complaint, pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(ii), for failure to state a claim on which relief may be granted. On
appeal, Rowan first argues that the district court erred by finding that he failed to
state a § 1983 retaliation claim against officials at MCI. The court, he argues,
misconstrued the facts asserted in the complaint. Rowan contends that his
complaint asserted that he was retaliated against for writing grievances against
and/or to Officers Reed and Jones. Rowan’s complaint alleged that he was
retaliated against by Officers Lamore and Jones, and the other named defendants
had participated in the retaliatory acts of Lamore and Jones by upholding false
disciplinary reports, and by opposing, impeding, and distorting, as well as failing
to investigate, acts of officer misconduct and reprisal in an effort to cover them up.
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Rowan alleges that his complaint sufficiently showed a causal connection between
his filing of grievances and the issuance and upholding of disciplinary reports.
United States Code, Title 28, Section 1915(e) provides, inter alia, that any
in forma pauperis (“IFP”)1 action or appeal shall be dismissed at any time if it fails
to state a claim on which relief may be granted. 28 U.S.C. § 1915(e)(2)(B)(ii). A
district court's dismissal for failure to state a claim, pursuant to
§ 1915(e)(2)(B)(ii), is reviewed de novo, using the same standards that govern
Fed.R.Civ.P. 12(b)(6) dismissals, and viewing the allegations in the complaint as
true. See Mitchell v. Farcass, 112 F.3d 1483, 1490 (11th Cir. 1997). While notice
pleading does not require the complainant to allege a fact to cover every element
of a claim, “it is still necessary that a complaint contain either direct or inferential
allegations respecting all the material elements necessary to sustain a recovery
under some viable legal theory.” Roe v. Aware Woman Ctr. for Choice, Inc., 253
F.3d 678, 683 (11th Cir. 2001). (quotations and citations omitted).
“First Amendment rights to free speech and to petition the government for a
redress of grievances are violated when a prisoner is punished for filing a
1
“[Section] 1915(e) only applies to cases in which the plaintiff is proceeding IFP.”
Farese v. Scherer, 342 F.3d 1223, 1228 (11th Cir. 2003). Rowan is proceeding IFP.
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grievance concerning the conditions of his imprisonment.” Boxer X v. Harris, 437
F.3d 1107, 1112 (11th Cir. 2006) (citing Wildberger v. Bracknell, 869 F.2d 1467,
1468 (11th Cir. 1989)); Farrow v. West, 320 F.3d 1235, 1248 (11th Cir. 2003)
(“The First Amendment forbids prison officials from retaliating against prisoners
for exercising the right of free speech.”) (citing Thomas v. Evans, 880 F.2d 1235,
1242 (11th Cir. 1989)). A plaintiff alleging retaliation under the First Amendment
“need not allege violation of a separate and distinct constitutional right[,] . . .
[r]ather, the gist of a retaliation claim is that a prisoner is penalized for exercising
the right of free speech.” Farrow, 320 F.3d at 1248 (internal citations and
quotations omitted). Under our precedent Rowan “can establish retaliation by
demonstrating that the prison official’s actions were the result of his having filed a
grievance concerning the conditions of his imprisonment.” Id.
For the reasons set out below we can assume arguendo, but need not decide
that Rowan has alleged facts that support his claim of retaliation, and his
complaint does set out the requisite factual elements to make out a claim for First
Amendment retaliation under our precedent against some of the named defendants.
Specifically, he contends that he received two punishments–a fifteen day
probation for contraband and a thirty day probation for lying to the staff–that were
the result of two prison officers’ drive to punish Rowan for his frequent
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grievances. His complaint alleges that based on the frequency of Rowan’s
grievances and the fact that at least one grievance was directed at Officer Jones
specifically, both named officers who subjected him to the purported retaliation
knew of his grievances and took action against him within days, and even hours,
of receipt of specific grievances. Rowan may have, therefore, alleged that he has
engaged in protected conduct (filed grievances), has suffered adverse
consequences or punishment (two periods of probation), and that there is perhaps a
causal relationship between the adverse consequences and his protected speech.
On the other hand, the disciplinary charges (which Rowan claims constitute the
retaliation) seem eminently reasonable under the circumstances.
Although we may disagree with the magistrate and district courts below
(and thus leave open whether Rowan has raised a cognizable retaliation claim
under the First Amendment), we are satisfied that the relief Rowan seeks moots
his case.2 Rowan has two equitable grounds for relief: first, he desires declaratory
relief to prevent further retaliation by the named defendants; second, he seeks to
have his disciplinary record, as it pertains to the two complained of incidents,
expunged. Neither of these grounds for relief presents the Court with a justiciable
2
Even though this standing issue was not raised by the court below, we must review our
jurisdiction over appeals at all times throughout the appellate process. Spears v. Thigpen, 846
F.2d 1327, 1328 (11th Cir. 1988).
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issue. In the interim time pending the outcome of this case, Rowan has been
transferred to another prison facility in Florida and the guards against whom he
seeks equitable relief are no longer in a position to retaliate against him or fail to
respond to his grievances. See Spears v. Thigpen, 846 F.2d 1327, 1328 (11th Cir.
1988) (recognizing prisoner’s claims concerning prison conditions are moot when
prisoner transferred to another facility); Cotterall v. Paul, 755 F.2d 777, 780 (11th
Cir. 1985) (“Past exposure to illegal conduct does not in itself show a pending
case or controversy regarding injunctive relief if unaccompanied by any
continuing, present injury or real and immediate threat of repeated injury.”)
(quotation and citation omitted).3 Further, as a life inmate in the Florida prison
system, we fail to see how expungement of Rowan’s disciplinary record creates a
justiciable case or controversy.4 See Bennett v. Hendrix, 423 F.3d 1247, 1253
(11th Cir. 2005) (“For Article III standing purposes . . . plaintiff must allege
personal injury fairly traceable to the defendant's allegedly unlawful conduct and
likely to be redressed by the requested relief. As long as the injury is distinct and
3
Rowan has alleged that for fear of retaliation at MCI he ceased to grieve in the manner
he was accustomed to prior to the purported retaliation. However, other than the specific alleged
incidents at MCI, Rowan provides us with no basis to find that he faces a real or immediate
threat of retaliation at his present, new facility.
4
Rowan’s brief on appeal acknowledges that the “‘fact or duration’ of his sentence is not
affected by the disciplinary reports.”
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palpable rather than abstract, conjectural, or hypothetical, it is sufficient to confer
standing.”) (quotations and citations omitted).
Rowan additionally seeks costs and nominal damages. It is abundantly clear
on this record that his nominal damages claim will not survive a qualified
immunity analysis. See Dartland v. Metro. Dade County, 866 F.2d 1321,1323
(11th Cir. 1989) (finding in analogous public employee’s speech context only the
“extraordinary case” will result in a finding of a clearly established constitutional
violation). We are empowered in limited circumstances such as these to consider
the qualified immunity question prior to deciding whether the plaintiff has
demonstrated a constitutional violation. See, e.g. Ehrlich v. Town of Glastonbury,
348 F.3d 48, 57 (2d Cir 2003) (recognizing that in situations where determining
the constitutional violation depends on factual issues not yet developed, court
need not decide constitutional violation question before reaching qualified
immunity); Dirrane v. Brookline Police Dep’t, 315 F.3d 65, 69-70 (1st Cir. 2002)
(“But it is an uncomfortable exercise where, as here, the answer whether there was
a violation may depend on a kaleidoscope of facts not yet fully developed. It may
be that Saucier was not strictly intended to cover the latter case.”). Having failed
to make out a claim for either injunctive or legal relief, Rowan’s claims stand to be
dismissed.
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The judgment of the district court therefore is AFFIRMED.
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