MOULTRIE v. GIELOW

UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

EDDIE JAMES MOULTRIE,

Plaintiff,

vs. Case No.: 3:24cv389/LC/ZCB

LT. W. GIELOW,

Defendant.

________________________________/

REPORT AND RECOMMENDATION

Plaintiff is an inmate of the Florida Department of Corrections

(FDOC). He is proceeding pro se in this civil rights action under 42 U.S.C.

§ 1983.

The Court is required to screen Plaintiff’s amended complaint (Doc.

10) to determine whether it is frivolous, malicious, fails to state a

plausible claim for relief, or seeks monetary relief from immune

defendants. See 28 U.S.C. § 1915A (requiring screening of prisoner

complaints); see also Jones v. Bock, 549 U.S. 199, 202 (2007) (recognizing

that Congress has mandated “early judicial screening of prisoner

complaints”). After reviewing the amended complaint, it is apparent that

dismissal is warranted for failure to state a claim.

I. Plaintiff’s Factual Allegations

Plaintiff names as Defendant former Santa Rosa Correctional

Institution (SRCI) officer Lieutenant W. Gielow. (Doc. 10 at 2). Plaintiff

alleges that in January 2024, Defendant supervised Plaintiff’s prison

wing while prison officials neglected duties and acted inappropriately.

(Id. at 5). Plaintiff states he began filing grievances for various things

such as lack of recreation time, refusals of healthcare callouts, and sexual

comments. (Id.). Plaintiff asserts that Defendant responded to these

grievances. (Id.).

Plaintiff alleges on February 19, 2024, Defendant awoke Plaintiff

and told Plaintiff that “he doesn’t take kindly to [Plaintiff] filing

grievances.” (Id. at 6). Plaintiff decided to stop filing grievances against

the officers in his prison wing because he felt his safety was at risk. (Id.).

Plaintiff alleges that same month, he began believing that someone

falsified his records to prevent him from receiving gain-time. (Id.).

Plaintiff alleges on April 12, 2024, Defendant “threatened

[Plaintiff] without cause” which Plaintiff grieved informally. (Id.).

Plaintiff states that false allegations of rule violations were brought

against him in the March 2024 gain-time notice. (Id. at 6-7). Plaintiff

alleges on April 25, 2024, he filed a grievance against “unknown staff” for

falsifying records to deprive Plaintiff of gain-time. (Id. at 7). Plaintiff

claims that a disciplinary report would have allowed him to challenge the

allegations. (Id.).

Plaintiff states he “felt” Defendant was falsifying records to

retaliate for Plaintiff’s grievances, but he lacked proof of this. (Id.).

Plaintiff alleges that Defendant admitted to the “tampering” when

Defendant responded to an informal grievance on April 30, 2024. (Id.).

Plaintiff states that on May 2, 2024, Defendant placed Plaintiff on

property restriction. (Id.).

Plaintiff alleges on May 7, 2024, he received another disciplinary

report for disobeying orders. (Id. at 8). Plaintiff states that he believed

Defendant was ultimately responsible for preparing this report. (Id.). On

May 9, 2024, Plaintiff filed a grievance alleging that the report was false

and retaliatory. (Id.). Plaintiff alleges that he was found guilty at a

hearing on the disciplinary report, which made him ineligible for May’s

gain-time. (Id. at 9). Plaintiff states that the May 9, 2024, grievance was

denied, and he then appealed to the FDOC Secretary who referred it back

to the Warden. (Id.). Plaintiff states the Warden did not address his

grievance, leading Plaintiff to appeal again to the FDOC Secretary. (Id.

at 9-10).

Plaintiff alleges that Defendant resigned from FDOC during the

appeal, but Plaintiff says the retaliation continued (Id. at 10). Plaintiff

states on June 12, 2024, he denied being retaliated against by Defendant

and received a disciplinary report for a spoken threat on June 18, 2024.

(Id.). Plaintiff alleges that on June 20, 2024, while he was at the hearing

for the spoken threat, his cell was “maliciously trashed[,]” and he was

placed on property restriction. (Id.). Plaintiff states he lost additional

gain-time after he received another disciplinary report. (Id. at 10-11).

Plaintiff alleges Defendant’s initial actions eventually led to these later

retaliatory acts. (Id. at 11).

Plaintiff’s sole claim against Defendant is a retaliation claim under

the First Amendment. (Id. at 12). Plaintiff seeks damages, fees and

costs, and compensation for his lost gain-time. (Id.).

II. Statutory Screening Standard

To survive dismissal at the screening phase, “a complaint must

contain sufficient factual matter, accepted as true, to state a claim to

relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (internal quotation marks omitted). The plausibility standard is

met only where the facts alleged enable “the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Id.

Plausibility means “more than a sheer possibility that a defendant has

acted unlawfully.” Id. “Where a complaint pleads facts that are merely

consistent with a defendant’s liability, it stops short of the line between

possibility and plausibility of entitlement to relief.” Id. (internal

quotation marks omitted).

The determination of whether a complaint states a plausible claim

for relief is “a context-specific task that requires the reviewing court to

draw on its judicial experience and common sense.” Id. at 679. The Court

is “not bound to accept as true a legal conclusion couched as a factual

allegation.” Id. at 678 (internal quotation marks omitted). And “bare

assertions” that “amount to nothing more than a formulaic recitation of

the elements” of a claim “are conclusory and not entitled to be assumed

true.” Id. at 681 (internal quotation marks omitted). “While legal

conclusions can provide the framework of a complaint, they must be

supported by factual allegations.” Id. at 679.

III. Discussion

A. Plaintiff has not stated a plausible claim for

retaliation.

Plaintiff alleges Defendant violated his First Amendment right to

free speech “by depriving [Plaintiff] of [his] ability to earn gain-time as a

form of retaliation for legitimate grievances[.]” (Doc. 10 at 12). Plaintiff

states Defendant committed other retaliatory acts when Plaintiff grieved

the unlawful obstruction of his ability to earn extra gain-time which is a

state-created liberty interest. (Id.).

“A prisoner may state a claim under the First Amendment when he

alleges that he was punished for filing a grievance concerning the

conditions of his imprisonment.” Smart v. England, 93 F.4th 1283, 1289

(11th Cir. 2024) (cleaned up). To prevail on a First Amendment

retaliation claim, Plaintiff must establish four elements: (1) he engaged

in protected speech; (2) prison officials retaliated against him; (3) there

was an adverse impact on his protected speech; and (4) a causal

relationship existed between the retaliation and the adverse effect. Id.

Here, Plaintiff has not plausibly alleged the last two elements.

Looking to the third element, Plaintiff has failed to plausibly allege

Defendant’s conduct adversely impacted Plaintiff’s protected speech. An

adverse impact exists when the retaliatory conduct “would likely deter a

person of ordinary firmness from the exercise of First Amendment

rights[.]” Echols v. Lawton, 913 F.3d 1313, 1320 (11th Cir. 2019).

Although it is “not dispositive, the plaintiff’s actual response to the

defendant’s conduct provides some evidence of the tendency of that

conduct to chill First Amendment Activity.” Bethel v. Town of Loxley, 221

F. App’x 812, 813 (11th Cir. 2006).

Here, the only allegation regarding an adverse impact was that on

February 19, 2024, Defendant allegedly told Plaintiff “he doesn’t take

kindly to [Plaintiff] filing grievances[,]” causing Plaintiff not to file any

grievances out of fear. (Doc. 10 at 6). This allegation, however, is vague,

conclusory, and does not point to any unlawful conduct by Defendant.

Aside from this single instance, Plaintiff makes no other allegations that

he was unable to file grievances or express his concerns about prison

officials or conditions at the prison. In fact, Plaintiff admits throughout

his amended complaint that he continued filing grievances despite the

alleged retaliatory acts committed against him.1 See generally Pavao v.

Sims, 679 F. App’x 819, 826 (11th Cir. 2017) (pointing out that the record

1 See, e.g., Doc. 10 at 6 (“[Plaintiff] learned in formal grievance 2403-119-

281 that someone was [falsifying records] . . . .”); id. (stating on April 12

Defendant threatened Plaintiff which Plaintiff “felt compelled to report

in informal grievance 119-2404-0616”); id. at 6-7 (referring to formal

grievance 2404-119-213 filed by Plaintiff); id. at 7 (referring to Plaintiff’s

filing of informal grievance 119-2404-1043 on April 25); id. at 8 (referring

to Plaintiff filing formal grievance 2405-119-114 on May 9); id. at 9-10

(referring to Plaintiff appealing the denial of formal grievance 2405-119-

114, which Plaintiff appealed again after the Warden allegedly failed to

address it); id. at 10 (referring to Plaintiff’s June 20 grievance regarding

the lack of a lock on the grievance box); id. at 11 (referring to Plaintiff

following up with the FDOC Secretary on July 19 regarding the refiled

showed a prisoner continued to file grievances despite alleged threats of

retaliation). Thus, Plaintiff has not plausibly alleged that Defendant

suppressed Plaintiff’s ability to file grievances. Because Plaintiff has not

plausibly alleged that his ability to engage in the protected activity of

filing grievances was adversely impacted by retaliatory conduct, Plaintiff

has not alleged a plausible retaliation claim.

Plaintiff has also failed to sufficiently allege the fourth element of

a retaliation claim, which is causation. This element requires Plaintiff

to allege “a causal connection between his protected conduct and the

prison official’s action.” Jemison v. Wise, 386 F. App’x 961, 964-65 (11th

Cir. 2010). “In other words, the prisoner must show that, as a subjective

matter, a motivation for the defendant’s adverse action was the prisoner’s

grievance . . . .” Id. Here, Plaintiff provides no specific and non-

conclusory facts that connect his losses of gain-time to any subjective

motivation by Defendant to punish Plaintiff for his grievances. Plaintiff

vaguely references Defendant telling Plaintiff that he “doesn’t take

kindly” to Plaintiff’s grievances, but he alleges no specific threat or

adverse action in connection with this event on February 19, 2024. (Doc.

10 at 6). On April 12, 2024, Plaintiff claims Defendant threatened him

“without cause[,]” but he provides no detail regarding this event nor does

he plausibly connect these alleged threats to Plaintiff’s grievances. (Id.

at 6). Plaintiff also claims Defendant admitted to tampering with his

disciplinary records, but he provides no facts about this alleged

admission nor does he explain whether it was in response to Plaintiff’s

grievances. (Id. at 7).

At bottom, Plaintiff provides few if any facts connecting his

grievances to the allegedly retaliatory conduct of depriving Plaintiff of

his gain-time. Plaintiff attempts to connect disciplinary actions spanning

several months to two vague and isolated incidents where Defendant

allegedly told Plaintiff “he didn’t take kindly” to the grievances and

where Defendant allegedly “tampered” with Plaintiff’s disciplinary

record. These allegations, however, are conclusory and speculative at

best. Additionally, Plaintiff states that Defendant was no longer even

employed by the FDOC when some of the things he complains about

happened. (Doc. 10 at 10). Thus, Plaintiff’s allegations are insufficient

to plausibly allege that Defendant was “subjectively motivated to

discipline [Plaintiff] because [he] complained of some of the conditions of

his confinement. Smith v. Mosley, 532 F.3d 1270, 1278 (11th Cir. 2008).

In sum, because Plaintiff has not plausibly the essential elements

of a retaliation claim, dismissal is warranted.

B. Plaintiff cannot recover monetary damages for the loss

of gain-time under 42 U.S.C. § 1983.

Plaintiff also fails to state a claim because he cannot recover

monetary damages for the loss of gain-time under 42 U.S.C. § 1983.

“Gain-time is time credited to reduce a prisoner’s term.” Hale v. Sec’y for

Dep’t of Corr., 345 F. App’x 489, 492 (11th Cir. 2009). “When a state

prisoner is challenging the duration of his confinement and the relief

sought is a speedier release from imprisonment, the sole federal remedy

is a writ of habeas corpus.” Id. (cleaned up). A prisoner cannot seek

monetary damages for lost gain-time under 42 U.S.C. § 1983 “while still

imprisoned because awarding damages for a loss of gain-time would

imply that the prisoner’s loss of gain-time was invalid, and thus he

cannot seek monetary damages for the loss of gain-time until the loss of

gain-time has been invalidated.” Id. (citing Heck v. Humphrey, 512 U.S.

477, 486-87 (1994)).

Here, Plaintiff is clearly seeking monetary relief for his allegedly

lost gain-time. ((Doc. 10 at 12-13 (stating Defendant violated Plaintiff’s

free speech rights by “depriving [Plaintiff] of [his] ability to earn gain-

time” and seeking “appropriate compensation” for Defendant hindering

“[Plaintiff’s] ability to recover gain-time”)). But as noted previously, “[a]

prisoner may not seek monetary damages for the loss of gain-time in an

action pursuant to 42 U.S.C. § 1983.” Hale, 345 F. App’x at 492; Heard

v. Fla. Dep’t of Corr. Sec’y, No. 23-10051, 2023 WL 7183735, at *2 (11th

Cir. Nov. 1, 2023) (“Because a prisoner cannot use § 1983 to obtain

damages where success would necessarily imply the unlawfulness of a

not previously invalidated conviction or sentence, [the plaintiff’s] § 1983

claims fail.”) (cleaned up). Accordingly, Plaintiff fails to state a

retaliation claim for Defendant’s alleged deprivation of Plaintiff’s ability

to earn gain-time.

C. Allowing Plaintiff an opportunity to amend would be

futile.

Given the issues with Plaintiff’s amended complaint noted above,

allowing Plaintiff another opportunity to amend his complaint would be

futile.2 See Mitchell v. Thompson, 564 F. App’x 452, 457 (11th Cir. 2014)

(affirming district court’s denial of opportunity to amend where prisoner

2 See also Channell v. Folsom, No. 5:23-CV-280-TKW/MJF, 2024 WL

5150679, at *3 (N.D. Fla. Nov. 19, 2024) (“Amendment would be futile

because Plaintiff cannot seek restoration of gain time credits in a civil

action filed under section 1983 . . . .”) adopted, 2024 WL 5145964 (N.D.

Fla. Dec. 16, 2024); Wooten v. Arzu, No. 408-CV-00583-MP-WCS, 2010

WL 625219, at *1 (N.D. Fla. Feb. 16, 2010) (“Plaintiff’s claims would, if

proven, necessarily imply the invalidity of her term of imprisonment and,

thus are not cognizable under § 1983. This case cannot proceed as it

failed to plausibly allege causation and adverse action elements of

retaliation claim).

IV. Conclusion

For the reasons above, it is respectfully RECOMMENDED that:

1. Plaintiff’s amended complaint (Doc. 10) be DISMISSED for

failure to state a claim upon which relief may be granted

under 28 U.S.C. § 1915A(b)(1).

2. The Clerk of Court be directed to close this case.

At Pensacola, Florida this 17th day of April 2025

/s/ Zachary C. Bolitho

Zachary C. Bolitho

United States Magistrate Judge

Notice to the Parties

Objections to these proposed findings and recommendations must

be filed within fourteen days of the date of the Report and

Recommendation. Any different deadline that may appear on the

electronic docket is for the Court’s internal use only and does not control.

An objecting party must serve a copy of the objections on all other parties.

A party who fails to object to the magistrate judge’s findings or

recommendations contained in a report and recommendation waives the

right to challenge on appeal the district court’s order based on

unobjected-to factual and legal conclusions. See 11th Cir. Rule 3-1; 28

U.S.C. § 636.