Wildberger v. Bracknell, 88-7373

• Decision Date: 14 April 1989
• Docket Number: No. 88-7373,88-7373
• Citation: 869 F.2d 1467
• Parties: Leon WILDBERGER, Plaintiff-Appellant, v. Sgt. David BRACKNELL, Lt. Robert Simmons, Steve Hicks, CO II, et al., Defendants-Appellees. Non-Argument Calendar.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1467

869 F.2d 1467

Leon WILDBERGER, Plaintiff-Appellant, v. Sgt. David BRACKNELL, Lt. Robert Simmons, Steve Hicks, CO

II, et al., Defendants-Appellees.

No. 88-7373

Non-Argument Calendar.

United States Court of Appeals, Eleventh Circuit.

April 14, 1989.

Harry A. Lyles, Gen. Counsel, Alabama Dept. of Corrections Legal Div., John T. Harmon, Montgomery, Ala., for defendants-appellees.

Appeal from the United States District Court for the Northern District of Alabama.

Before TJOFLAT and COX, Circuit Judges, and TUTTLE, Senior Circuit Judge.

PER CURIAM:

This is an appeal from the dismissal by the trial court of appellant's 42 U.S.C. Sec. 1983 action against Alabama Department of Corrections officials, Sgt. Bracknell, Lt. Simmons, Associate Warden DeLoach and correctional officers Hicks and Twyman.

Appellant's principal contentions were that he had been denied a federal constitutional right, because the defendants violated the grievance procedures established by the State Department of Corrections, and because he had been disciplined by being placed in segregation in retaliation for his having filed several grievances under the state's grievance procedures. He also alleged that he had been personally assaulted by one Lt. Moore, whom he did not name as a defendant. In addition, the complaint challenged the fairness and impartiality of the disciplinary committee that had acted on his grievance. His charge in this respect is principally due to the fact that two members of the grievance committee were in supervisory positions over the persons charged with responsibility for the alleged illegal conduct; plaintiff also claimed that the chairman of the committee unfairly denied plaintiff's request to call two additional witnesses at the disciplinary hearing, which restricted his ability to establish his innocence.

The trial court adopted the report and recommendation of the magistrate, holding that the petition should be dismissed on the defendants' motion for summary judgment. The magistrate concluded that the violation of the grievance procedure did not rise to the level of a constitutional violation, since there was no entitlement to a grievance procedure under the Federal Constitution.

The recommendation also held that since there was no right to a grievance procedure under the Constitution, a claim of retaliation for filing a grievance also did not state a constitutional claim. As to the claim for the personal assault, the magistrate found that the suit was properly dismissed, since Moore had not been made a defendant and had received no notice of the lawsuit. The magistrate's recommendation found that, although the claim of lack of a fair and impartial disciplinary committee implicated federal constitutional rights, the minimum requirements of due process were met under the standard stated in Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974).

We conclude that the trial court erred in one respect in granting the motion for summary judgment.

Claim of Retaliation.

As stated above, Wildberger averred that his constitutional rights had been violated since, as he alleged, he had been disciplined because he had filed several grievances in the past. He claims this is a clear case of an inmate being punished for exercising his First Amendment right to "freedom of speech" and his right "to petition the government for a redress of grievances." ¹

This Court has decided a number of cases dealing with quite similar constitutional issues. In Wright v. Newsome, 795 F.2d 964 (11th Cir.1986), we said:

Wright also sufficiently alleged facts bringing actions that...