Danny J. Hicks v. Joe Ferrero

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED

________________________ U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

No. 06-16007 JUNE 22 2007

Non-Argument Calendar THOMAS K. KAHN

________________________ CLERK

D. C. Docket No. 03-00307-CV-DF-5

DANNY J. HICKS,

Plaintiff-Appellee,

versus

JOE FERRERO, et al.,

Defendants,

RALPH BATTLE,

JIMMY SIKES,

ARTHUR R. GORDON,

JAMES TAYLOR,

Defendants-Appellants.

________________________

Appeal from the United States District Court

for the Middle District of Georgia

_________________________

(June 22, 2007)

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 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. Orum, 422 F.3d 1265, 1267 (11th Cir. 2005). Pro se

pleadings are entitled to liberal construction. Drew v. Dep’t of Corrs., 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

1

Ralph Battle is the warden of the prison; Arthur Gordon is the deputy warden of the

prison; Jimmy Sikes is the regional director for the Georgia Department of Corrections; and

James Taylor is the health services administrator for the prison.

2

These appellants also appeal the denial of their summary judgment motion on the merits

of Hicks’s retaliation claim. We conclude, however, that we lack jurisdiction to consider this

pendent claim because it is not “inextricably intertwined” with the qualified immunity question.

See Hudson v. Hall, 231 F.3d 1289, 1293-94 (11th Cir. 2000). We pause to note that even if the

two claims were “inextricably intertwined,” we would decline to exercise our discretion to

consider this merits-based claim. See Swint v. Chambers County Comm’n, 514 U.S. 35, 51, 115

S. Ct. 1203, 1212 (1995).

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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 (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 (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

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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 between the supervisor’s actions and the alleged

constitutional violation. Id.

“The causal connection can be established when a history of widespread

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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

3

The record on appeal demonstrates that Hicks does not allege that Sikes and Taylor

were personally involved in raising his security level or that Sikes and Taylor filed negative

reports on him, nor is there any evidence to support such contentions. We note that, as to the

negative reports, Hicks alleged in his complaint that unidentified “counselors” filed these

reports, but Sikes was a supervisor, not a counselor. Taylor is the health services administrator

at Bostick Prison, not a counselor. Also, Hicks did not identify Sikes or Taylor during his

deposition as prison officials who filed frivolous reports on him. Moreover, even when

construed in a light most favorable to Hicks, the facts alleged do not show a “widespread” and

“obvious” history of prison officials raising inmates’ security levels or preparing false reports in

retaliation for filing grievances. Hartley, 193 F.3d at 1269. Accordingly, we conclude that

Hicks has failed to establish the possibility of supervisory liability here, and, thus, he has not

shown that Sikes or Taylor violated a clearly established constitutional right. See Saucier, 533

U.S. at 201, 121 S. Ct. at 2156.

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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

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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

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.

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