Darryl Pernell Butler v. Hope Davis

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 18-11140
Non-Argument Calendar
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D.C. Docket No. 7:16-cv-00172-HL-TQL
DARRYL PERNELL BUTLER,
Plaintiff - Appellee,
versus
NURSE AMBER NORMAN, et al.,
Defendants,
HOPE DAVIS,
LT. RON HOWELL,
Defendants - Appellants.
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Appeal from the United States District Court
for the Middle District of Georgia
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(March 21, 2019)
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Before MARTIN, JILL PRYOR and NEWSOM, Circuit Judges.
PER CURIAM:
Two corrections officers appeal a district court order denying their motion
for summary judgment on a pro se inmate’s claim that they retaliated against him
for exercising his First Amendment rights. On appeal, the defendant-officers argue
that the district court erred in denying their motion because they are entitled to
qualified immunity. After careful review, we agree with the defendants and
therefore reverse the denial of summary judgment and remand to the district court
with instructions to enter judgment in their favor.
I. FACTUAL AND PROCEDURAL BACKGROUND
Darryl Pernell Butler is incarcerated at the Colquitt County Jail in Georgia.
Jail staff intercepted a piece of mail that Ernest Robinson, a former inmate, sent to
Butler containing a copy of a district court order in a lawsuit in which Robinson
was the plaintiff but to which Butler was not a party. At the time Robinson filed
his lawsuit, he was incarcerated at the Jail, but he was no longer incarcerated there
when he sent the court order to Butler. Butler alleged that then-Jail Administrator
Rod Howell told him, in the presence of then-detention officer Hope Davis,
“[S]ince you filed th[is] lawsuit you cannot use our law book[s] anymore,” Doc. 8-
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1 ¶ 14, 1 and that he would no longer be permitted to access the law library. At his
deposition, Butler testified that he had provided no legal assistance to Robinson:
Q: . . . [Y]ou had done a little bit of work for Mr. Ernest Robinson on
a case; is that correct?
A: No, sir.
Q: Okay. No legal work for him?
A: No, sir.
Doc. 69 at 13.
Butler, proceeding pro se, filed a 42 U.S.C. § 1983 lawsuit against Howell
and Davis for retaliating against him in violation of his First Amendment rights by
denying him access to legal materials because they believed that he had assisted
Robinson with a lawsuit. 2 Howell and Davis moved for summary judgment, which
the magistrate judge recommended denying because genuine disputes of material
fact remained as to the nature of Butler’s assistance to Robinson and whether
Howell and Davis acted with a retaliatory motive. The district court adopted the
magistrate judge’s recommendation and denied summary judgment to the
defendants. The sole issue on appeal is whether the district court erred in denying
summary judgment to Howell and Davis on Butler’s First Amendment retaliation
claim.
1
“Doc. #” refers to the numbered entry on the district court’s docket.
2
Butler also alleged other claims against additional defendants, none of which are before
us in this appeal. The district court dismissed without prejudice Butler’s claim that Howell and
Davis denied him access to the courts, a decision that Butler has not appealed.
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II. STANDARD OF REVIEW
“[W]e review de novo a district court’s denial of summary judgment
involving qualified immunity,” Griesel v. Hamlin, 963 F.2d 338, 341 (11th Cir.
1992), viewing the facts in the light most favorable to the nonmoving party,
Glasscox v. City of Argo, 903 F.3d 1207, 1212 (11th Cir. 2018). Although “[w]e
must draw all reasonable inferences in favor of the party opposing summary
judgment,” where we discern “no genuine dispute concerning any material fact and
the movant is entitled to judgment as a matter of law,” we must grant summary
judgment. Id. at 1212-13.
III. DISCUSSION
We reverse the denial of summary judgment to Howell and Davis. Our
careful review of the record reveals no genuine dispute as to the dispositive and
material fact that Butler provided no legal assistance to Robinson. Even assuming,
therefore, that Butler had a clearly established First Amendment right against
retaliation for providing legal assistance to current or former inmates, Howell and
Davis did not violate any such First Amendment right because he engaged in no
First Amendment-protected activity. Howell and Davis thus are entitled to
qualified immunity.
A. We Have Jurisdiction to Hear This Interlocutory Appeal.
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The magistrate judge recommended denying summary judgment to Howell
and Davis because “genuine issues of material fact remain regarding whether
Plaintiff provided legal assistance to [Robinson] in an effort to bring about social
change and protect constitutional rights” and because Howell and Davis “ha[d] not
provided any testimony or evidence to refute Plaintiff’s claim that they denied him
access to legal materials in retaliation for Plaintiff’s assisting [Robinson] with his
lawsuit.” Doc. 111 at 7; see also id. at 6-7 (citing Taylor v. McSwain, 335 F.
App’x 32, 34 (11th Cir. 2009) (unpublished) (“[W]here a prisoner undertakes
litigation on behalf of others in order to bring about social change and protect
constitutional rights, his actions may be considered protected political
expression.”)). In their objections to the magistrate judge’s report and
recommendation, the officers raised both factual and legal disputes: they asserted
that (1) they were entitled to summary judgment because Butler’s deposition
statement showed that he had provided no legal assistance to Robinson; and (2),
even if Butler had provided legal assistance to Robinson and even if this assistance
was activity protected by the First Amendment against retaliation, they were
entitled to qualified immunity because Butler’s right was not clearly established.
The district court, after conducting a de novo review of Howell and Davis’s
objections to the magistrate judge’s recommendation, adopted the magistrate
judge’s recommendation and denied summary judgment to the defendants.
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The district court did not explicitly state that it was denying summary
judgment to the officers based on its determination that their alleged conduct
violated a clearly established right to be free from retaliation for providing legal
assistance to current or former inmates. Nevertheless, that determination was a
necessary condition to the district court’s denial of summary judgment: only if the
First Amendment provides a clearly established right against retaliation for
providing legal assistance to current or former inmates would it have been proper
for the district court to deny qualified immunity and summary judgment. See
Glasscox, 903 F.3d at 1213 (explaining that, to defeat a defense of qualified
immunity, a plaintiff must show that “(1) the defendant violated a constitutional
right, and (2) this right was clearly established at the time of the alleged violation”
(internal quotation marks omitted)). The district court’s denial of summary
judgment therefore was based both on its implicit determination of these legal
issues and its conclusion that genuine disputes of material fact remained.
Ordinarily, we may review only final decisions of district courts, which
would preclude review of a denial of summary judgment. See 28 U.S.C. § 1291.
However, “a district court’s denial of a claim of qualified immunity, to the extent
that it turns on an issue of law, is an appealable ‘final decision’ within the meaning
of 28 U.S.C. § 1291 notwithstanding the absence of a final judgment.” Mitchell v.
Forsyth, 472 U.S. 511, 530 (1985). Stated another way, “interlocutory appellate
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jurisdiction over the legal issues involved in a qualified immunity question exists
even where the district court denied the summary judgment motion with the
unadorned statement that material issues of fact remain as to the defendant on the
federal question claim.” Cottrell v. Caldwell, 85 F.3d 1480, 1484-85 (11th Cir.
1996) (emphasis added) (alterations adopted) (internal quotation marks omitted)
(citing Behrens v. Pelletier, 516 U.S. 299, 304 (1996)). Because the district court’s
denial of summary judgment turns on disputed issues of law as well as disputed
issues of fact, this case comes within Mitchell’s exception to § 1291, and we may
exercise jurisdiction over this interlocutory appeal.3 Further, “in the course of
deciding th[is] interlocutory appeal,” we retain “authority to decide . . . those
evidentiary sufficiency issues that are part and parcel of the core qualified
immunity issues, i.e.[,] the legal issues.” Id. at 1486.
B. The Defendants Have Not Waived Their Assertion of Qualified
Immunity.
Butler contends that the officers waived their argument that they are entitled
to qualified immunity by waiting until their reply brief on summary judgment to
raise it explicitly. Although ordinarily “arguments raised for the first time in a
3
Butler’s only argument in response to the Jurisdictional Question this Court issued to
the parties was that the defendants misstated the record regarding his involvement in the
Robinson case—specifically, Butler contends that the piece of mail the defendants intercepted
was unrelated to Robinson’s lawsuit. The veracity of Butler’s accusation that the defendants
mischaracterized the content of the mail does not undermine our jurisdiction over this appeal,
however. Our exercise of interlocutory appellate jurisdiction depends only on whether the
district court’s order contains reviewable issues of law, not of fact.
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reply brief are not properly before a reviewing court,” Herring v. Sec’y, Dep’t of
Corrs., 397 F.3d 1338, 1342 (11th Cir. 2005) (alteration adopted) (internal
quotation marks omitted), we conclude based on the circumstances here that the
officers did not waive the defense of qualified immunity.
Even if the officers failed to timely assert qualified immunity in their
briefing before the magistrate judge—an issue we expressly do not decide—it was
within the district court’s discretion to consider an argument that was not before
the magistrate judge. See Stephens v. Tolbert, 471 F.3d 1173, 1176 (11th Cir.
2006). The officers raised the qualified immunity defense in their objections to the
magistrate judge’s recommendation, Butler had the opportunity to respond to their
qualified immunity argument, and the district court specifically stated that it had
reviewed the officers’ objections and found them unpersuasive. Because the
district court exercised its discretion to consider the defendants’ qualified
immunity defense, the issue is properly before us on appeal. 4
C. The Defendants Are Entitled to Qualified Immunity on Butler’s
Claim That They Denied Him Law Library Access in Retaliation for
His Having Provided Legal Assistance to Robinson.
4
In their response to our Jurisdictional Question to the parties, the officers assert that
Butler was able to file a surreply and that therefore the primary reason for why reviewing courts
do not consider claims and defenses raised for the first time in a reply brief—that the opponent is
deprived of an adequate opportunity to respond—does not apply here. See Knighten v. Comm’r,
702 F.2d 59, 60 n.1 (5th Cir. 1983) (“It is impermissible to mention an issue for the first time in a
reply brief, because the appellee then has no opportunity to respond.”). The officers’ assertion is
misleading and inappropriate because, as they are well aware, they moved below to strike
Butler’s surreply, and the magistrate judge granted their motion.
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The magistrate judge recommended denying summary judgment to the
officers on the ground that genuine disputes of material fact remained regarding
whether Butler provided legal assistance to Robinson for the purpose of promoting
social change and protecting constitutional rights and whether the defendants acted
with a retaliatory motive. The district court adopted the magistrate judge’s
recommendation and denied summary judgment.
Upon a de novo review of the record, however, we conclude that no genuine
dispute exists as to the dispositive and material fact of whether Butler provided
legal assistance to Robinson. See Cottrell, 85 F.3d at 1486 (explaining that a
reviewing court may reach “those evidentiary sufficiency issues that are part and
parcel of the core qualified immunity issues”). At his deposition, Butler testified
that he provided no legal assistance to Robinson. 5 A necessary element of a First
Amendment retaliation claim is that the plaintiff’s “speech or act was
constitutionally protected.” Bennett v. Hendrix, 423 F.3d 1247, 1250 (11th Cir.
2005). Therefore, even assuming that Butler had a First Amendment right against
5
Butler makes conflicting statements in his brief on appeal, arguing in one place that he
“did not help Robinson file his lawsuit,” Appellee’s Br. at 16, and in another that “Mr. Robinson
could not have filed his lawsuit without Plaintiff answering request forms” submitted by
Robinson to obtain legal research materials, id. at 18. To the extent that Butler seeks to use his
brief to raise a genuine dispute as to whether he provided legal assistance to Robinson, we must
disregard the allegations in his brief that contradict the clear, undisputed record evidence.
Federal Rule of Civil Procedure 56 permits a party to support his arguments on summary
judgment using only “materials in the record” that was before the district court. Fed. R. Civ. P.
56(c)(1)(A), (3). The clear, undisputed record evidence shows that Butler provided no legal
assistance to Robinson.
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retaliation for providing legal assistance to a current or former inmate and that this
right was clearly established at the time the officers curtailed his access to legal
materials, Butler engaged in no speech or acts that came within this assumed First
Amendment sphere of protection. See Cottrell, 85 F.3d at 1489-92 (resolving
qualified immunity question by assuming, without deciding, that defendants’
alleged actions, if proven, would have violated a clearly established right but
determining that the record contained no facts from which a reasonable jury could
infer that a necessary factual predicate for a violation existed); Burrell v. Bd. of Tr.
of Ga. Military Coll., 970 F.2d 785, 792 (11th Cir. 1992) (“Assuming, without
deciding, that [two defendants] would have violated a clearly established right by
conspiring with [another defendant] to have [the plaintiff] fired for speaking out
against [Georgia Military College], the record does not contain inferable facts that
could support a finding that either [of the first two defendants] in any way
conspired with [the other defendant] to discharge [the plaintiff] for her public
criticism of GMC. Without a conspiracy, there obviously is no constitutional
violation. Without a constitutional violation, there can be no violation of a clearly
established right.”). Because Butler cannot show an essential element of his claim
that Howell and Davis violated his First Amendment right against retaliation, the
officers are entitled to qualified immunity.
IV. CONCLUSION
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We REVERSE the district court’s order denying defendants Howell and
Davis’s motion for summary judgment and remand to the district court with
instructions to enter judgment in their favor.
REVERSED.
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