HICKS v. FERRERO, 241 Fed.Appx. 595 (11th Cir. 2007)

No. 06-16007 Non-Argument Calendar.United States Court of Appeals, Eleventh Circuit.
June 22, 2007.

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William P. Tinkler, Jr., Decatur, GA, for Defendants-Appellants.

Danny J. Hicks, Hardwick, GA, pro se.

Appeal from the United States District Court for the Middle District of Georgia. D.C. Docket No. 03-00307-CV-DF-5.

Before BIRCH, DUBINA and HULL, Circuit Judges.

PER CURIAM:

Appellants Ralph Battle, Arthur Gordon, Jimmy Sikes, and James Taylor, state prison officials, [1] appeal interlocutorily the district court’s order denying their defense of qualified immunity on inmate Danny Hicks’s First Amendment retaliation claim.[2] Hicks alleged that these prison

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officials retaliated against him for filing grievances over prison conditions and medical care.

We review de novo a district court’s denial of summary judgment on qualified immunity grounds, viewing the facts in a light most favorable to the plaintiff. Bozeman v. arum, 422 F.3d 1265, 1267 (11th Cir. 2005). Pro se pleadings are entitled to liberal construction. Drew v. Dep’t of Com., 297 F.3d 1278, 1285 (11th Cir. 2002).

“Qualified immunity offers complete protection for government officials sued in their individual capacities if their conduct `does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'” Vinyard v. Wilson, 311 F.3d 1340, 1346 (11th Cir. 2002) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982)).

A public official, in order to receive qualified immunity, “must first prove that `he was acting within the scope of his discretionary authority when the allegedly wrongful acts occurred.'” Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002) (citations omitted). A public official is not entitled to qualified immunity if he or she was acting outside of his or her discretionary authority. Id. However, where, as here, it is undisputed that government officials were acting within their discretionary authority, the burden is on the plaintiff to demonstrate that qualified immunity is not appropriate. Dalrymple v. Reno, 334 F.3d 991, 995 (11th Cir. 2003).

The Supreme Court has recognized a two-pronged test to determine whether qualified immunity is appropriate. A court must first address the threshold question of whether, taken in the light most favorable to the party asserting the injury, the facts alleged show the officer’s conduct violated a constitutional right. Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 2156, 150 L.Ed.2d 272 (2001). If a court answers this threshold question affirmatively, then it must consider whether the constitutional right was “clearly established” in the specific context of the case. Id.

“The First Amendment forbids prison officials from retaliating against prisoners for exercising the right of free speech.”Farrow v. West, 320 F.3d 1235, 1248 (11th Cir. 2003). To prevail on a retaliation claim, a prisoner may show that: (1) he engaged in protected expression; (2) he suffered an adverse action; and (3) the adverse action was causally related to the protected expression. See Higdon v. Jackson, 393 F.3d 1211, 1219 (11th Cir. 2004) (in the context of an ADA retaliation claim); see also Stavropoulos v. Firestone, 361 F.3d 610, 619 (11th Cir. 2004) (discussing the interplay between § 1983 retaliation cases and Title VII retaliation cases). “A prisoner 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.'”Farrow, 320 F.3d at 1248 (quoting Wildberger v. Bracknell, 869 F.2d 1467, 1468 (11th Cir. 1989)).

“[S]upervisory officials are not liable under § 1983 for the unconstitutional acts of their subordinates `on the basis of respondeat superior or vicarious liability.'” Hartley v. Parnell, 193 F.3d 1263, 1269 (11th Cir. 1999) (citation omitted). Rather, supervisor liability only can be established when: (1) the supervisor personally participated in the alleged constitutional violation, or (2) there was a causal connection

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between the supervisor’s actions and the alleged constitutional violation. Id.

“The causal connection can be established when a history of widespread abuse puts the responsible supervisor on notice of the need to correct the alleged deprivation, and he fails to do so.” Id. Moreover, “[t]he deprivations that constitute widespread abuse sufficient to notify the supervising official must be obvious, flagrant, rampant and of continued duration, rather than isolated occurrences.” Id. Additionally, “the causal connection may be established and supervisory liability imposed where the supervisor’s improper `custom or policy . . . result[s] in deliberate indifference to constitutional rights.'” Id. (citation omitted).

After reviewing the record and reading the parties’ briefs, we conclude that the district court properly found that Battle and Gordon were not entitled to qualified immunity, but we vacate and remand with respect to Sikes and Taylor, concluding that they were entitled to qualified immunity on Hicks’s First Amendment claim.[3]

Viewed in a light most favorable to Hicks, the facts alleged establish that Battle and Gordon violated Hicks’s free speech rights by retaliating against him for filing grievances over prison conditions. See Bozeman, 422 F.3d at 1267. Hicks filed his first grievance in June 2003, and within one month Battle and Gordon retaliated by raising his security level from minimum to medium.

Moreover, Battle and Gordon made this decision despite the fact that: (a) Hicks’s security level had been set at minimum for approximately thirty years, from 1976 until 2003; (b) prison officials had reviewed Hicks’s file in 2002 and had recommended that his security level remain at this level; (c) he had a thirteen year clean record; and (d) Battle and Gordon considered the same factors presumably considered in all of the previous annual reviews — the nature of Hicks’s offenses, his sentences, his attempted prison escape in 1978, the security mission of the prison, and the physical security limitations of the prison.

Accordingly, these facts, if proven true, demonstrate a First Amendment violation. Hicks was engaged in a protected activity (free speech); he suffered an adverse action (his security level was raised); and the raising of his security level was causally related to him filing grievances. See Higdon, 393 F.3d at 1219.

Furthermore, a reasonable prison official standing in Battle or Gordon’s shoes should have realized at the time that he made the retaliatory decision that he was violating a clearly established constitutional right. We concluded as early as 1989 — well before this decision was made — that a prisoner’s First Amendment

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free speech rights are violated when prison officials retaliate against him or her for filing a grievance. See Wildberger, 869 F.2d at 1468.

In conclusion, we affirm the district court’s denial of qualified immunity as to Battle and Gordon, but vacate and remand with respect to Sikes and Taylor. Sikes and Taylor were entitled to qualified immunity in their individual capacities, because the facts alleged, even if ultimately proven true, do not show that they violated a clearly established constitutional right.

AFFIRMED IN PART; VACATED AND REMANDED IN PART.