The opinion
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
GERMAINE SMART, )
)
Plaintiff, )
)
v. ) Case No. 4:19-cv-00471-MHH-JHE
)
RONALD ENGLAND, et al., )
)
Defendants. )
MEMORANDUM OPINION
Mr. Smart has sued Corrections Officer Ronald England and the Alabama
Department of Corrections for sexual assault and retaliation. Mr. Smart contends
that Officer England sexually assaulted him and then filed a false disciplinary report
against him because he (Mr. Smart) reported the sexual assault to Officer England’s
superior. (Doc. 1, pp. 3, 7). Mr. Smart asks the Court to award damages and to
compel the Department of Corrections to discipline Officer England. (Doc. 1, p. 3).
The magistrate judge filed a report in which he recommended that the Court dismiss
this § 1983 action without prejudice for failing to state a claim upon which relief can
be granted. (Doc. 10). Mr. Smart has objected to the report and recommendation.
(Doc. 13).
A district court “may accept, reject, or modify, in whole or in part, the findings
or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C). A
district judge must “make a de novo determination of those portions of the
[magistrate judge’s] report or specified proposed findings or recommendations to
which objection is made.” 28 U.S.C. § 636(b)(1); see also FED. R. CRIM. P. 59(b)(3)
(“The district judge must consider de novo any objection to the magistrate judge’s
recommendation.”). A district court’s obligation to “‘make a de novo determination
of those portions of the report or specified proposed findings or recommendations to
which objection is made,’” United States v. Raddatz, 447 U.S. 667, 673 (1980)
(quoting 28 U.S.C. § 636(b)(1)), requires a district judge to “‘give fresh
consideration to those issues to which specific objection has been made by a party,’”
447 U.S. at 675 (quoting House Report No. 94-1609, p. 3 (1976)) (emphasis in
Raddatz).
Mr. Smart challenges one of the factual findings in the report. He asserts that
Officer England, not Captain Malone as reported by the magistrate judge, initiated a
disciplinary report against him for lying. (Doc. 13, pp. 1-2). Mr. Smart is correct;
he alleges in his complaint that Officer England filed a disciplinary report in which
he charged Mr. Smart with the offense of lying. (Doc. 1, p. 7).
In addition to that factual objection, Mr. Smart challenges several aspects of
the analysis in the report. With respect to the magistrate judge’s finding that Mr.
Smart cannot assert a private cause of action under the Prison Rape Elimination Act,
(Doc. 10, p. 6), Mr. Smart states that he did not intend to assert a claim under the
Act, (Doc. 13, p. 2). The magistrate judge broadly interpreted Mr. Smart’s
contention that Officer England “sexually assaulted” him “in a violation of the
Eighth Amendment of the United States Constitution and the Prison Rape
Elimination Act,” (Doc. 1, p. 5), as an attempt to state a claim under the statute. Mr.
Smart explains that he cited the PREA as the source of ADOC’s Standard Operating
Procedure concerning inmate sexual abuse and harassment. (Doc. 13, p. 2). The
Court accepts Mr. Smart’s clarification of his claims.
Mr. Smart challenges the magistrate judge’s finding that there was some
evidence to support the finding of guilt on Sergeant England’s disciplinary charge
of “512 – Lying,” barring Mr. Smart’s retaliation claim against Sergeant England.
(Doc. 10, pp. 6-8; Doc. 13, pp. 4-8). Mr. Smart argues that under ADOC regulations,
Sergeant England should not have been allowed to bring the disciplinary charge in
the first place, so the disciplinary proceeding cannot shield Sergeant England from
a retaliation claim.
Mr. Smart relies on ADOC OPR Regulation 454, “INMATE SEXUAL
ABUSE AND HARASSMENT (Prison Rape Elimination Act [PREA]).”1
Regulation 454 provides that ADOC “maintain[s] a zero-tolerance policy against
1 Mr. Smart cites ALDOC Standard Operating Procedure 229. (Doc. 13, pp. 2, 3, 7). The Court
found the regulation at OPR Regulation 454. The regulation is available at
http://www.doc.state.al.us/docs/AdminRegs/AR454.pdf.
inmate sexual abuse and harassment and custodial sexual misconduct.” OPR 454, §
II. With respect to inmate reporting of sexual misconduct, the regulation states:
Disciplinary action may be taken when an investigation by the IPCM
and/or I&I Investigator determines that an inmate made a false report
of sexual abuse or sexual harassment.
OPR 454, § V(H)(2)(b).
However, an inmate reporting sexual abuse or sexual harassment, shall
not be issued a disciplinary report for lying based solely on the fact that
their allegations were unfounded or that the inmate later decides to
withdraw his / her allegation.
OPR 454, § V(H)(2)(c). An “Unfounded Allegation” is “[a]n allegation that was
investigated and determined not to have occurred.” OPR 454, § III(A)(2). The
regulation also states:
Retaliation in any form for the reporting of, or cooperation with, sexual
abuse or harassment allegations is strictly prohibited.
The Warden and IPCM shall ensure inmates and staff who report sexual
abuse, sexual harassment, or cooperate with a sexual abuse
investigation are protected from retaliation by other inmates or staff.
OPR 454, § V(K)(1), (2).
Citing O’Bryant v. Finch, 637 F.3d 1207 (11th Cir. 2011), the magistrate
judge stated: “If there is some evidence the plaintiff violated the disciplinary
infraction he was charged with, the retaliation claim must fail.” (Doc. 10, p. 7). That
is a correct statement of law, but Mr. Smart contends that he could not have been
charged in the first place under OPR 454, § V(H)(2)(c) because the I&I Investigator
who reviewed his charge of sexual misconduct against Sergeant England found that
the charge was unfounded, not false. (Doc. 13, p. 4; see also Doc. 1, pp. 6-8).
Sergeant England charged the “Lying” violation of Rule 512 as follows: “You
inmate Germaine Smart B/M 193127 made an allegation against Sergeant Ronald
England on 09/09/2016. Further investigation by I&I Investigator George Bynum
completed his investigation on 03/06/2017. Disposition Showed this case
‘Unfounded and Closed.’ Therefore, you are being charged with Lying.” (Doc. 1,
p. 8). Sergeant England provided no other grounds for the disciplinary charge.
Therefore, at this stage of this § 1983 action, it appears that Officer England, in
bringing the “Lying” disciplinary charge against Mr. Smart, violated the regulatory
instruction that an inmate reporting sexual misconduct “shall not be issued a
disciplinary report for lying based solely on the fact that their allegations were
unfounded.” OPR 454, § V(H)(2)(c).
Sergeant England’s inability, under ADOC’s PREA regulation, to bring a
disciplinary charge against Mr. Smart, on the record currently before the Court,
distinguishes this case from the O’Bryant case. So does the state of the record;
O’Bryant was decided at the summary judgment stage, not on a preliminary
screening of a prisoner complaint. O’Bryant, 637 F.3d at 1208. Still, the O’Bryant
decision offers guidance for this case.
In O’Bryant, the Eleventh Circuit explained: “To prevail on a retaliation
claim, the inmate must establish that: ‘(1) his speech was constitutionally protected;
(2) the inmate suffered adverse action such that the [official’s] allegedly retaliatory
conduct would likely deter a person of ordinary firmness from engaging in such
speech; and (3) there is a causal relationship between the retaliatory action [the
disciplinary punishment] and the protected speech [the grievance].’” O’Bryant, 637
F.3d at 1212 (quoting Smith v. Mosley, 532 F.3d 1270, 1276 (11th Cir. 2008)). It
may be that ADOC adopted OPR 454, § V(H)(2)(c) to ensure that prisoners are not
deterred from reporting sexual misconduct, given ADOC’s “zero-tolerance policy
against inmate sexual abuse and harassment and custodial sexual misconduct.” OPR
454, § II.
In reaching its decision in O’Bryant, the Eleventh Circuit relied on the
following passage from the Supreme Court’s decision in Superintendent v. Hill:
Although the evidence in this case might be characterized as meager,
and there was no direct evidence identifying any one of three inmates
as the assailant, the record is not so devoid of evidence that the findings
of the disciplinary board were without support or otherwise arbitrary.
O’Bryant, 637 F.3d at 1214 (quoting Superintendent v. Hill, 472 U.S. 445, 4457
(1985)). The record before the Court indicates that the hearing officer for Mr.
Smart’s disciplinary hearing found only that “Inmate Smart [sic] allegation” of
sexual misconduct “against Sgt. England is unfounded.” (Doc. 1, p. 9). On that lone
finding, the hearing officer determined that Mr. Smart was guilty of lying. (Doc. 1,
p. 9). In light of OPR 454, § V(H)(2)(c)’s prohibition on the issuance of a
disciplinary report based only on the fact that an inmate’s “allegations [of sexual
abuse or sexual harassment] were unfounded,” the hearing officer’s finding of guilt
is arbitrary and devoid of evidence of other conduct that would enable Sergeant
England to pursue a lying charge against Mr. Smart based on Mr. Smart’s report that
Sergeant England grabbed his penis during a shake down.
The Court expresses no view as to the merits of Mr. Smart’s retaliation claim
against Sergeant England. The Court simply finds that Mr. Smart’s retaliation claim
against Sergeant England, in his individual capacity, should survive a screening
under 28 U.S.C. § 1915A. The Court adopts the magistrate judge’s findings that
ADOC and Sergeant England, in his official capacity, are immune from Mr. Smart’s
claims and that Mr. Smart’s Eighth Amendment claim against Sergeant England, in
his individual capacity, is barred by the applicable two-year statute of limitations.
The Court returns Mr. Smart’s retaliation claim against Sergeant England in
his individual capacity to the magistrate judge for additional proceedings.
DONE and ORDERED this March 5, 2021.
debi bl _
Malis 5 FOI
UNITED STATES DISTRICT JUDGE