Osterback v. Kemp

• Decision Date: 15 October 2003
• Docket Number: No. 4:01CV207-RH/WCS.,4:01CV207-RH/WCS.
• Citation: 300 F.Supp.2d 1238
• Parties: Mark OSTERBACK, Plaintiff, v. Doyle KEMP, et al., Defendants.
• Court: U.S. District Court — Northern District of Florida

300 F.Supp.2d 1238

Mark OSTERBACK, Plaintiff, v. Doyle KEMP, et al., Defendants.

No. 4:01CV207-RH/WCS.

United States District Court, N.D. Florida, Tallahassee Division.

October 15, 2003.

Donna Marie Laplante, Attorney General State of FL — Tallahassee FL, State of Florida, Tallahassee, for Doyle W Kemp.

ORDER GRANTING SUMMARY JUDGMENT IN PART

SHERRILL, United States Magistrate Judge.

Plaintiff is an inmate in the Florida Department of Corrections. While at Walton Correctional Institution, he filed grievances and challenged actions of correctional authorities in various respects, often successfully. He was transferred to nearby Santa Rosa Correctional Institution on February 1, 2000. Plaintiff complained of actions of the Santa Rosa librarian, Defendant Barry Zane Rhodes, and filed a grievance against Mr. Rhodes with the Florida Bar, which was promptly dismissed as unfounded. Soon after the dismissal, in September 2000, Mr. Rhodes recommended Plaintiff's transfer to another institution, explicitly based on the filing of the Bar grievance. Plaintiff was transferred to Hamilton Correctional Institution.

By his complaint in this action, Plaintiff asserts that each of these transfers was made in retaliation for his exercise of First Amendment rights. He seeks damages and injunctive relief against a number of correctional officials.

Defendants have moved for summary judgment. The Magistrate Judge has entered a Report and Recommendation, which thoroughly documents the authorities in this area. No purpose would be served by reiterating that discussion in this order. Instead, this order announces the court's decision, which accepts the Magistrate Judge's recommendation in part, and summarizes the basis for the ruling.

The Magistrate Judge has recommended that the motion for summary judgment be granted with respect to the first transfer and denied with respect to the second. I accept the recommendation and grant Defendants' motion for summary judgment with respect to the first transfer, disagree with the recommendation and thus grant the motion for summary judgment with respect to the damages claim arising from the second transfer, and accept the recommendation and thus deny the motion for summary judgment with respect to the claim for injunctive relief arising from the second transfer.

A summary of the grounds for this ruling is as follows. The authorities supporting the ruling are well set forth in the Report and Recommendation.

First, Plaintiff's various complaints and grievances constituted speech and petitions to the government protected by the First Amendment, as Defendants apparently acknowledge.

Second, at least for purposes of the pending summary judgment motion, Plaintiff has adequately supported the assertion that the transfers were made as a result of Plaintiff's complaints and grievances.

Third, in light of the deference properly afforded the decisions of prison authorities on matters of safety and proper administration of facilities, the transfer of Plaintiff from Walton to Santa Rosa was not unconstitutional. This is so because the transfer was "reasonably related to legitimate penological interests" separate and apart from any purpose to retaliate. See O'Lone v. Estate of Shabazz, 482 U.S. 342, 349, 107 S.Ct. 2400, 96 L.Ed.2d 282 (1987) (applying standard to prisoners' religion claim), quoting Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987) (applying standard to prisoners' free speech and association claims). Any adverse effect on Plaintiff was not sufficient to preclude a transfer based on those legitimate penological interests.

Fourth, whether the same is true with respect to the transfer from Santa Rosa to Hamilton cannot be determined as a matter of law based on this record; this is, instead, a triable issue.

Fifth, the law on this issue — transfer of a prisoner in response to an unfounded Bar grievance against a librarian with whom the prisoner has contact on a daily basis — was not sufficiently clearly established at the time of this transfer to overcome the defense of qualified immunity.¹ Defendants thus are entitled to summary judgment on Plaintiff's claim for damages based on this transfer.

In light of these rulings, this matter will be remanded to the Magistrate Judge for appropriate further proceedings. In light of the dismissal of all damages claims, the Magistrate Judge may reconsider as and when appropriate the issue of the number and identity of proper defendants.

For these reasons,

IT IS ORDERED:

Defendants' motion for summary judgment (documents 82 and 85) is GRANTED IN PART and DENIED IN PART. Summary judgment is granted with respect to all claims arising from Plaintiff's transfer from Walton Correctional Institution to Santa Rosa Correctional Institution and with respect to all claims for damages arising from Plaintiff's transfer from Santa Rosa Correctional Institution to Hamilton Correctional Institution. Summary judgment is granted with respect to all claims against any Defendant in his or her individual capacity. Summary judgment is denied with respect to claims against Defendants in their official capacities for injunctive relief arising from Plaintiff's transfer from Santa Rosa Correctional Institution to Hamilton Correctional Institution. I do not direct the entry of judgment under Federal Rule of Civil Procedure 54(b). This matter is remanded to the Magistrate Judge for such further proceedings as may be appropriate.

REPORT AND RECOMMENDATION

SHERRILL, United States Magistrate Judge.

Plaintiff, a pro se inmate filed a second amended civil rights complaint under 42 U.S.C. § 1983, doc. 75, alleging that he was transferred twice from one prison to another in retaliation for filing grievances and lawsuits, and engaging in protected First Amendment activities. The first is Plaintiff's transfer from Walton Correctional Institution to Santa Rosa Correctional Institution on February 1, 2000. The second is Plaintiff's transfer from Santa Rosa Correctional Institution to Hamilton Correctional Institution in November of 2000.¹

Defendants filed a special report, doc. 82, supplemented by a separate memorandum of law. Doc. 85. Defendants also filed a notice of supplemental authority. Doc. 92. The special report was construed as a motion for summary judgment and Plaintiff was advised of his obligation to respond in accordance with Rule 56. Doc. 83. Plaintiff was permitted to conduct limited discovery prior to responding to the summary judgment motion. Docs. 88, 90, 98, and 103. Plaintiff has filed a response to the motion, doc. 109, with exhibits in support of his claims.

Defendants had earlier filed a motion to dismiss, doc. 57, Plaintiff's amended complaint, doc. 55. The motion was granted in part and denied in part, and Plaintiff was directed to file the second amended complaint. Doc. 67.

I. Legal standards governing a motion for summary judgment

On a motion for summary judgment Defendants initially have the burden to demonstrate an absence of evidence to support the nonmoving party's case. Celotex Corporation v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2553-54, 91 L.Ed.2d 265 (1986). If they do so, the burden shifts to Plaintiff to come forward with evidentiary material demonstrating a genuine issue of fact for trial. Id. Plaintiff must show more than the existence of a "metaphysical doubt" regarding the material facts, Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corporation, 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986), and a "scintilla" of evidence is insufficient. There must be such evidence that a jury could reasonably return a verdict for the party bearing the burden of proof. Anderson v. Liberty Lobby, 477 U.S. 242, 251, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986). All reasonable inferences must be resolved in the light most favorable to the nonmoving party. Watkins v. Ford Motor Co., 190 F.3d 1213, 1216 (11th Cir.1999).

"Rule 56(e) ... requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Owen v. Wille, 117 F.3d 1235, 1236 (11th Cir.1997), cert. denied 522 U.S. 1126, 118 S.Ct. 1074, 140 L.Ed.2d 133 (1998), quoting Celotex, 477 U.S. at 324, 106 S.Ct. at 2553 (quoting Fed.R.Civ.P. 56(c), (e)). The nonmoving party need not produce evidence in a form that would be admissible as Rule 56(e) permits opposition to a summary judgment motion by any of the kinds of evidentiary materials listed in Rule 56(c). Owen v. Wille, 117 F.3d at 1236; Celotex, 477 U.S. at 324, 106 S.Ct. at 2553.

II. The relevant Rule 56(e) evidence

a. Defendants' evidence, doc. 82

On January 3, 2000, while Plaintiff was housed at Walton Correctional Institution, Defendant Mary Scott prepared a progress report for Plaintiff. Doc. 82, p. 6. Defendant Scott was Plaintiff's probation officer. Id. The progress report stated that Plaintiff's work assignment as a houseman was "unsatisfactory," as was Plaintiff's "quarters adjustment." Doc. 82 p. 6; exhibits A1-A2. Defendant Scott recommended that Plaintiff be transferred to Santa Rosa Correctional Institution for a "program change." Ex. A-2. The specific reason given for that recommendation was the fact that although Plaintiff had been at Walton Correctional Institution only since July 14, 1999, he had been issued several disciplinary reports which had "not been fully processed for various reasons." Id. Defendant Scott stated that some disciplinary reports had "been disapproved prior to delivery," were "returned by the team for technical errors," and two disciplinary reports were "overturned by Central Office." Id. Because only three disciplinary reports had "been fully processed," the "Administration" felt it had "lost credibility with" Plaintiff and it would be in the best interest of maintaining...