Glenn Smith v. Correction Officer M. Villapando

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JULY 18, 2008
No. 08-11178 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 08-14032-CV-KMM
GLENN SMITH,
Plaintiff-Appellant,
versus
CORRECTION OFFICER M. VILLAPANDO,
MAJOR T. SHEFFIELD,
JACKIE ADAMS,
all in their individual capacities,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(July 18, 2008)
Before CARNES, BARKETT and HULL, Circuit Judges.
PER CURIAM:
Glenn Smith, a Florida prisoner, appeals the district court’s sua sponte
dismissal of his 42 U.S.C. § 1983 civil rights complaint against officers M.
Villapando, T. Sheffield, and Jackie Adams for failure to state a claim, pursuant to
28 U.S.C. § 1915(e)(2)(B)(ii). After review, we vacate the district court’s order
dismissing Smith’s complaint.
I. BACKGROUND
Smith’s pro se verified complaint alleges that the defendants retaliated
against him for exercising his First Amendment rights and denied him due process
during his disciplinary hearing and administrative appeals.1
A. April 28, 2005 Incident
On April 28, 2005, Smith was in disciplinary confinement at Okeechobee
Correctional Institute. Two corrections officers brought another inmate to Smith’s
cell. Smith told the officers he did not want a cellmate because he was nearly
beaten to death by a previous cellmate and was housed alone since then. Officer
Harris told Smith that he needed to request protective custody if he feared for his
safety, and Smith verbally did so. Nevertheless, Harris insisted that Smith was
getting a cellmate and told Smith to handcuff himself. When Harris opened the
1
In reviewing a dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), we take the
allegations in the complaint as true. Hughes v. Lott, 350 F.3d 1157, 1159-60 (11th Cir. 2003).
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door to Smith’s cell to place the other inmate inside, Smith stood in the doorway to
the cell, refused to move when instructed to do so, and stood firmly when Harris
tried to push him into the cell.
Defendant Villapando, another corrections officer, observed the incident and
instructed Smith to go to the shower while the other inmate was placed in Smith’s
cell. Defendant Villapando told Smith that if he ever came at an officer again,
Villapando would put him down.
Defendant Sheffield, another corrections officer, then arrived, and Smith
renewed his verbal request for protective custody. Defendant Sheffield told Smith
that he must make his request in writing and that he would have a cellmate while
his request was processed. Smith told Sheffield that the prison knew about his past
problems with cellmates and was now retaliating against him. Sheffield said that
Smith would be receiving two disciplinary reports (“DR”), one for declining a
cellmate and another for protesting Sheffield’s handling of the matter.
Defendant Sheffield left, and defendant Villapando, along with two other
corrections officers, moved Smith from the shower back to his cell. When Smith
refused to enter the cell, the three officers pushed him inside. Later in the day,
Smith completed the protective custody request form, and his cellmate was moved
to another cell.
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B. Two Disciplinary Reports
On May 4, 2005, Smith was served with two separate DRs written by
Villapando and approved by Sheffield. One DR was for disorderly conduct and
stated that when defendant Villapando escorted Smith to the shower, Smith kicked
the shower door, yelled “I don’t want a fucking roommate!” and refused
Villapando’s orders to stop his disruptive conduct. Smith denied these facts in his
complaint.
The other DR was for disobeying orders. The disobeying orders DR stated
that Smith refused orders to step out of the cell entrance to receive a cellmate,
stated “No, I will not! I decline having a cellmate!” and refused to comply with
further orders to step out.
After a disciplinary hearing, Smith was found guilty on both DRs. Smith
received thirty days of disciplinary confinement for the disorderly conduct DR and
thirty days of disciplinary confinement and loss of sixty days of gain time for the
disobeying orders DR. Smith’s appeal to the warden was denied by the assistant
warden. Smith’s appeal to the Secretary of the DOC was also denied.
C. Procedural History
Smith’s § 1983 complaint challenged only the disorderly conduct DR, not
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the disobeying orders DR.2 Smith’s complaint raised two claims. First, Smith
claimed that the disorderly conduct DR was issued in retaliation for him exercising
his First Amendment rights (1) to protest having a cellmate when he previously
was beaten by a cellmate, and (2) to complain about the corrections officers’
actions during the incident.
Second, Smith’s complaint alleged that his due process rights were violated
in the adjudication and appeal of the disorderly conduct DR because: (1) his
institutional appeal was not decided by the warden, as required by prison
regulations; (2) Villapando’s “false accusatory” statements were not entitled to the
“some evidence” standard of review; and (3) the disciplinary hearing team (a)
relied on evidence that had no indicia of reliability, (b) did not explain why
Smith’s own sworn evidence was unreliable and less credible than Villapando’s
unsworn statement, (c) did not allow Smith to present live witnesses, (d) did not
explain its reasons for the punishment imposed, and (e) failed to follow prison
regulations requiring it to impose a punishment proportional to the infraction.
Smith’s complaint requested that the district court award him (1) a
declaratory judgment that the defendants violated his First Amendment and due
process rights, (2) nominal and punitive damages, and (3) an injunction ordering
2
Smith’s complaint says that he has filed a habeas corpus petition challenging the
disobeying orders DR.
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that defendant Adams overturn the disorderly conduct DR and undo its
consequences.
The magistrate judge’s report (“R&R”) recommended that Smith’s § 1983
complaint be dismissed, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), for failure to
state a claim. As to Smith’s retaliation claim, the R&R recommended dismissal
because Smith admitted that he refused to comply with verbal orders to allow an
inmate to enter his cell and that he acted in a defiant, disorderly manner. Thus, the
R&R concluded that Smith’s retaliation claim had no merit and that Smith failed to
raise facts to show that there was a causal link between his alleged First
Amendment activity and the DR.
As to Smith’s due process claims, the R&R recommended dismissal because
his request for injunctive relief (overturning the DRs) would result in the
restoration of gain time and thus should have been brought in a habeas corpus
petition, not a § 1983 action. Further, to the extent Smith sought damages, the
R&R concluded that his claims were barred because the relief sought would imply
the invalidity of his conviction or sentence.
The district court overruled Smith’s objections and adopted the R&R. This
appeal followed.
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II. DISCUSSION
A district court is required to dismiss an in forma pauperis (“IFP”) action
when it fails to state a claim upon which relief may be granted. 28 U.S.C.
§ 1915(e)(2)(B)(ii). We review de novo a § 1915(e)(2)(B)(ii) sua sponte dismissal
for failure to state a claim. Hughes v. Lott, 350 F.3d 1157, 1159-60 (11th Cir.
2003).
A. Retaliation Claim
Prison officials cannot retaliate against a prisoner for exercising his First
Amendment right of free speech. Farrow v. West, 320 F.3d 1235, 1248 (11th Cir.
2003). To establish a retaliation claim under the First Amendment, a prisoner must
show a causal connection between his protected speech and the harm of which he
complains. Id. at 1248-49.
Smith’s verified complaint denied the factual basis for the disorderly
conduct in the DR. The disorderly conduct DR stated that Smith kicked the
shower door, yelled “I don’t want a fucking roommate!” and refused defendant
Villapando’s orders to stop his disruptive behavior. Smith’s complaint averred that
(1) Villapando’s factual statement in the DR was “entirely fabricated,” and (2)
“Plaintiff never yelled, never used profane language, never kicked on any doors in
refusing that an inmate unknown to plaintiff be placed in the cell with plaintiff.”
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Viewing the allegations in Smith’s verified complaint as true, Smith (1)
exercised his right to protest that he was being given a cellmate and to request
protective custody, and (2) in response, defendant Villapando made the false
allegations resulting in disciplinary confinement. In dismissing Smith’s complaint,
the district court relied on the fact that Smith admitted to blocking his cell door
when the corrections officers tried to give him a cellmate. However, those actions
formed the basis for the disobeying orders DR, not the disorderly conduct DR at
issue here. Smith did not admit to the specific conduct detailed in the disorderly
conduct DR. Thus, the district court erred in dismissing Smith’s retaliation claim
on that basis.
B. Due Process Claims
Smith argues that the district court erred in dismissing his due process
claims on the basis that they sought restoration of gain time and thus would imply
that the duration of his sentence was invalid. Smith points out that his § 1983
complaint challenged only the disorderly conduct DR, which did not involve a loss
of gain time.
In Preiser v. Rodriguez, a case involving prisoners who sought injunctive
relief to compel restoration of good-time credits, the Supreme Court concluded that
“when a state prisoner is challenging the very fact or duration of his physical
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imprisonment, and the relief he seeks is a determination that he is entitled to
immediate release or a speedier release from that imprisonment, his sole federal
remedy is a writ of habeas corpus.” 411 U.S. 475, 500, 93 S. Ct. 1827, 1841
(1973). In addition to equitable relief, a prisoner cannot obtain damages under
§ 1983 if doing so would imply that his outstanding conviction or sentence was
invalid. Heck v. Humphrey, 512 U.S. 477, 486-87, 114 S. Ct. 2364, 2372 (1994).
This rule includes challenges to the loss of gain time. Edwards v. Balisok, 520
U.S. 641, 646-48, 117 S. Ct. 1584, 1588-89 (1997).
However, the Supreme Court has made clear that these rules do not apply
categorically to all lawsuits challenging prison disciplinary actions. See
Muhammad v. Close, 540 U.S. 749, 754, 124 S. Ct. 1303, 1306 (2004). In
Muhammad, a prisoner filed a § 1983 action claiming that a prison official had
charged and subjected him to pre-hearing lockup in retaliation for earlier lawsuits
and grievance proceedings the prisoner had filed. Id. at 753, 124 S. Ct. at 1305.
The Supreme Court concluded that the § 1983 suit did not necessarily affect the
computation of good-time credits, so it “could not therefore be construed as
seeking a judgment at odds with his conviction or with the State’s calculation of
time to be served in accordance with the underlying sentence.” Id. at 754-55, 124
S. Ct. at 1306. Because the § 1983 suit did not implicate a claim that was
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cognizable in a habeas proceeding, Heck was inapplicable. Id. at 755, 124 S. Ct. at
1306.
Here, the first page of both Smith’s complaint and supporting memorandum
stated that he was challenging only the disorderly conduct DR, for which he
received thirty days in disciplinary confinement as punishment. Although he lost
gain time based on the disobeying orders DR, Smith does not challenge this DR in
his complaint or seek any relief pertaining to it. Thus, the district court erred in
finding that Smith sought restoration of gain time and, under Muhammad, in
dismissing Smith’s due process claims on the ground that the relief Smith sought
would necessarily imply the invalidity of the duration of his confinement.
III. CONCLUSION
For the reasons discussed herein, we vacate the district court’s order
dismissing Smith’s complaint and remand for further proceedings consistent with
this opinion.3
VACATED AND REMANDED.
3
The district court sua sponte dismissed Smith’s retaliation and due process claims. At
the § 1915(e)(2)(B)(ii) stage, the defendants have not been served and thus have not filed an
answer in the district court or a brief on appeal. Therefore, we limit our opinion to solely the
district court’s sua sponte dismissal, and nothing herein shall prejudice the defendants, once
served, from raising any and all deficiencies or defenses the defendants may wish to assert as to
whether Smith’s complaint states a claim for relief.
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