Michael E. Rowan v. James Harris

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________ FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

No. 07-11620 January 4, 2008

Non-Argument Calendar THOMAS K. KAHN

________________________ CLERK

D. C. Docket No. 05-14344-CV-JEM

MICHAEL E. ROWAN,

Plaintiff-Appellant,

versus

JAMES HARRIS,as Warden of Martin County

Correctional Institution and in his individual

capacity,

DEVERE INMAN, individually and as Assistant Warden,

Martin County Correctional Institution,

S. PARKER, individually and as Senior

Classification Officer, Martin County Correctional Institution,

S. PICKETT, individually and as Lieutenant for

Martin County Correctional Institution,

L. HARRIS, individually and as Classification

Officer for Martin County Correctional

Institution,

et al.,

Defendants-Appellees.

________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________

(January 4, 2008)

Before ANDERSON, CARNES and PRYOR, Circuit Judges.

PER CURIAM:

Michael E. Rowan, a prisoner formerly incarcerated at Martin County

Correctional Institution (“MCI”) in Florida, appeals the district court’s dismissal

of his pro se 42 U.S.C. § 1983 complaint, pursuant to 28 U.S.C.

§ 1915(e)(2)(B)(ii), for failure to state a claim on which relief may be granted. On

appeal, Rowan first argues that the district court erred by finding that he failed to

state a § 1983 retaliation claim against officials at MCI. The court, he argues,

misconstrued the facts asserted in the complaint. Rowan contends that his

complaint asserted that he was retaliated against for writing grievances against

and/or to Officers Reed and Jones. Rowan’s complaint alleged that he was

retaliated against by Officers Lamore and Jones, and the other named defendants

had participated in the retaliatory acts of Lamore and Jones by upholding false

disciplinary reports, and by opposing, impeding, and distorting, as well as failing

to investigate, acts of officer misconduct and reprisal in an effort to cover them up.

2

Rowan alleges that his complaint sufficiently showed a causal connection between

his filing of grievances and the issuance and upholding of disciplinary reports.

United States Code, Title 28, Section 1915(e) provides, inter alia, that any

in forma pauperis (“IFP”)1 action or appeal shall be dismissed at any time if it fails

to state a claim on which relief may be granted. 28 U.S.C. § 1915(e)(2)(B)(ii). A

district court's dismissal for failure to state a claim, pursuant to

§ 1915(e)(2)(B)(ii), is reviewed de novo, using the same standards that govern

Fed.R.Civ.P. 12(b)(6) dismissals, and viewing the allegations in the complaint as

true. See Mitchell v. Farcass, 112 F.3d 1483, 1490 (11th Cir. 1997). While notice

pleading does not require the complainant to allege a fact to cover every element

of a claim, “it is still necessary that a complaint contain either direct or inferential

allegations respecting all the material elements necessary to sustain a recovery

under some viable legal theory.” Roe v. Aware Woman Ctr. for Choice, Inc., 253

F.3d 678, 683 (11th Cir. 2001). (quotations and citations omitted).

“First Amendment rights to free speech and to petition the government for a

redress of grievances are violated when a prisoner is punished for filing a

1

“[Section] 1915(e) only applies to cases in which the plaintiff is proceeding IFP.”

Farese v. Scherer, 342 F.3d 1223, 1228 (11th Cir. 2003). Rowan is proceeding IFP.

3

grievance concerning the conditions of his imprisonment.” Boxer X v. Harris, 437

F.3d 1107, 1112 (11th Cir. 2006) (citing Wildberger v. Bracknell, 869 F.2d 1467,

1468 (11th Cir. 1989)); Farrow v. West, 320 F.3d 1235, 1248 (11th Cir. 2003)

(“The First Amendment forbids prison officials from retaliating against prisoners

for exercising the right of free speech.”) (citing Thomas v. Evans, 880 F.2d 1235,

1242 (11th Cir. 1989)). A plaintiff alleging retaliation under the First Amendment

“need not allege violation of a separate and distinct constitutional right[,] . . .

[r]ather, the gist of a retaliation claim is that a prisoner is penalized for exercising

the right of free speech.” Farrow, 320 F.3d at 1248 (internal citations and

quotations omitted). Under our precedent Rowan “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.” Id.

For the reasons set out below we can assume arguendo, but need not decide

that Rowan has alleged facts that support his claim of retaliation, and his

complaint does set out the requisite factual elements to make out a claim for First

Amendment retaliation under our precedent against some of the named defendants.

Specifically, he contends that he received two punishments–a fifteen day

probation for contraband and a thirty day probation for lying to the staff–that were

the result of two prison officers’ drive to punish Rowan for his frequent

4

grievances. His complaint alleges that based on the frequency of Rowan’s

grievances and the fact that at least one grievance was directed at Officer Jones

specifically, both named officers who subjected him to the purported retaliation

knew of his grievances and took action against him within days, and even hours,

of receipt of specific grievances. Rowan may have, therefore, alleged that he has

engaged in protected conduct (filed grievances), has suffered adverse

consequences or punishment (two periods of probation), and that there is perhaps a

causal relationship between the adverse consequences and his protected speech.

On the other hand, the disciplinary charges (which Rowan claims constitute the

retaliation) seem eminently reasonable under the circumstances.

Although we may disagree with the magistrate and district courts below

(and thus leave open whether Rowan has raised a cognizable retaliation claim

under the First Amendment), we are satisfied that the relief Rowan seeks moots

his case.2 Rowan has two equitable grounds for relief: first, he desires declaratory

relief to prevent further retaliation by the named defendants; second, he seeks to

have his disciplinary record, as it pertains to the two complained of incidents,

expunged. Neither of these grounds for relief presents the Court with a justiciable

2

Even though this standing issue was not raised by the court below, we must review our

jurisdiction over appeals at all times throughout the appellate process. Spears v. Thigpen, 846

F.2d 1327, 1328 (11th Cir. 1988).

5

issue. In the interim time pending the outcome of this case, Rowan has been

transferred to another prison facility in Florida and the guards against whom he

seeks equitable relief are no longer in a position to retaliate against him or fail to

respond to his grievances. See Spears v. Thigpen, 846 F.2d 1327, 1328 (11th Cir.

1988) (recognizing prisoner’s claims concerning prison conditions are moot when

prisoner transferred to another facility); Cotterall v. Paul, 755 F.2d 777, 780 (11th

Cir. 1985) (“Past exposure to illegal conduct does not in itself show a pending

case or controversy regarding injunctive relief if unaccompanied by any

continuing, present injury or real and immediate threat of repeated injury.”)

(quotation and citation omitted).3 Further, as a life inmate in the Florida prison

system, we fail to see how expungement of Rowan’s disciplinary record creates a

justiciable case or controversy.4 See Bennett v. Hendrix, 423 F.3d 1247, 1253

(11th Cir. 2005) (“For Article III standing purposes . . . plaintiff must allege

personal injury fairly traceable to the defendant's allegedly unlawful conduct and

likely to be redressed by the requested relief. As long as the injury is distinct and

3

Rowan has alleged that for fear of retaliation at MCI he ceased to grieve in the manner

he was accustomed to prior to the purported retaliation. However, other than the specific alleged

incidents at MCI, Rowan provides us with no basis to find that he faces a real or immediate

threat of retaliation at his present, new facility.

4

Rowan’s brief on appeal acknowledges that the “‘fact or duration’ of his sentence is not

affected by the disciplinary reports.”

6

palpable rather than abstract, conjectural, or hypothetical, it is sufficient to confer

standing.”) (quotations and citations omitted).

Rowan additionally seeks costs and nominal damages. It is abundantly clear

on this record that his nominal damages claim will not survive a qualified

immunity analysis. See Dartland v. Metro. Dade County, 866 F.2d 1321,1323

(11th Cir. 1989) (finding in analogous public employee’s speech context only the

“extraordinary case” will result in a finding of a clearly established constitutional

violation). We are empowered in limited circumstances such as these to consider

the qualified immunity question prior to deciding whether the plaintiff has

demonstrated a constitutional violation. See, e.g. Ehrlich v. Town of Glastonbury,

348 F.3d 48, 57 (2d Cir 2003) (recognizing that in situations where determining

the constitutional violation depends on factual issues not yet developed, court

need not decide constitutional violation question before reaching qualified

immunity); Dirrane v. Brookline Police Dep’t, 315 F.3d 65, 69-70 (1st Cir. 2002)

(“But it is an uncomfortable exercise where, as here, the answer whether there was

a violation may depend on a kaleidoscope of facts not yet fully developed. It may

be that Saucier was not strictly intended to cover the latter case.”). Having failed

to make out a claim for either injunctive or legal relief, Rowan’s claims stand to be

dismissed.

7

The judgment of the district court therefore is AFFIRMED.

8