MILLEDGE

v.

TUCKER

2 With his response, Plaintiff provides a copy of a grievance he sent to the Office of the Secretary for the Florida Department of Corrections on August 20, 2012. See Pl. Resp. at 9. In that grievance, Plaintiff reported the incidents that are the basis of his complaint, and he noted he had sent grievances directly to the institution on July cites no authority suggesting the adjudication of guilt is not “final” simply because he received no response to his appeal. In fact, the relevant provision of the Florida Administrative Code provides, “If an error is discovered at any time after an inmate has been found guilty of a disciplinary infraction, the warden, . . . or the deputy director of institutions (classification) or designee is authorized to cause a rehearing to take place within 30 days of the discovery of the error or the receipt of a successful grievance or appeal.” See Fla. Admin. Code r. 33-601.310(1). There is no evidence of a successful grievance or appeal, and given Plaintiff did not receive a rehearing, the disciplinary committee’s finding of guilt would appear to stand.

Regardless of whether the disciplinary report against Plaintiff is “final,” the Eleventh Circuit decision upon which Defendants rely is inapplicable under the circumstances. In O’Bryant, the plaintiff claimed two prison guards retaliated against him for filing grievances by submitting fabricated disciplinary reports against him. See 637 F. 3d at 1211. The court affirmed summary judgment in favor of the prison guards because the plaintiff was convicted of the disciplinary charges after “being afforded adequate due

6, 2012, July 20, 2012, and again on August 8, 2012, but he received no responses. Id. at 9-13. In the grievance, he does not mention disciplinary charges or the hearing, id., which was held on August 9, 2012, before he initiated the grievance process at the institution level, see Def. Ex. at 1. process.” Id. at 1215. The court reasoned that a later judicial challenge to the disciplinary report itself—in the form of a retaliation claim—would “render the disciplinary system impotent” because, if the plaintiff were to succeed in court on his retaliation claim, the factual findings would directly contradict those of the disciplinary committee. Id. at 1216. As the Eleventh Circuit succinctly explained in a later opinion, “It could not both be true that (1) the reports against [the plaintiff] were false and retaliatory (as his federal claim alleged), and (2) those same reports were true and not retaliatory (as the disciplinary panel concluded).” See Sears v. Roberts, 922 F. 3d 1199, 1206 (11th Cir. 2019).

By the plain language of the O’Bryant rule, a retaliation claim will be barred only when the prisoner directly challenges a disciplinary report by asserting the reporting prison official fabricated the allegations: “If a prisoner is found guilty of an actual disciplinary infraction after being afforded due process and there was evidence to support the disciplinary panel’s fact finding, the prisoner cannot later state a retaliation claim against the prison employee who reported the infraction in a disciplinary report. 637 F. 3d at 1215 (second emphasis added).

In the Sears case, the Eleventh Circuit emphasized the basis for its holding in O’Bryant. See 922 F. 3d at 1206. The plaintiff in Sears alleged officers used excessive force against him in violation of the Eighth Amendment. Id. at 1204. The district court granted summary judgment for the defendants because the plaintiff was found guilty of the conduct charged in the disciplinary report. Id. at 1205. The Eleventh Circuit vacated the district court’s order, holding the success of the plaintiff’s Eighth Amendment claims would not “depend on a finding that the disciplinary panel’s decision was wrong.” Id. at

1207. In this regard, the court drew a comparison to a Heck-bar analysis, noting the “disciplinary panel decided only that [the plaintiff] committed battery” against an officer, but it “did not make any factual findings about what the officers did to [the plaintiff] after that.” Id. (citing Dixon v. Hodges, 887

F. 3d 1235, 1238 (11th Cir. 2018)).³ Similar to a Heck-bar analysis, whether the O’Bryant bar applies is a fact-specific inquiry. And contrary to Defendants’ unsupported contention, the type of retaliatory conduct alleged matters. If a prisoner alleges a prison official falsified a disciplinary report because the prisoner exercised his First Amendment right to free speech, and the prisoner was adjudicated guilty after having been afforded due process, his retaliation claim against the reporting officer would be barred under O’Bryant. This is so because a successful

But the same is not necessarily true if the alleged retaliatory conduct was a physical assault or other adverse action because the factual foundation for the claims may not conflict. See, e.g., Jacoby v. Mack, 755 F. App’x 888, 903 (11th Cir. 2018) (holding the district court erred in dismissing the portion of the plaintiff’s retaliation claim based upon unjustified, targeted cell and strip searches but affirming dismissal of the portion of the plaintiff’s retaliation claim based upon alleged false disciplinary charges because the plaintiff “was afforded due process in the hearing”); see also Bumpus v. Watts, 448 F. App’x

3, 5, 6 (11th Cir. 2011) (affirming dismissal of the plaintiff’s retaliation claim insofar as it was based on alleged wrongful disciplinary action but reversing dismissal of the portion of the retaliation claim based on other alleged wrongful conduct—the plaintiff’s removal from a higher-paying prison job, his placement in “the hole,” and confiscation of personal property). Here, Plaintiff does not allege the retaliatory conduct (or the harm) was the filing of false disciplinary charges against him. In fact, he does not dispute the factual foundation of the disciplinary report. Plaintiff argues instead that the retaliatory conduct was the alleged planned beating that occurred inside the medical room. Plaintiff’s success on his retaliation claim against Defendant

Parrish would not necessarily contradict the factual basis for the disciplinary charges against him. In other words, if a jury were to find that Defendant Parrish used excessive force against Plaintiff in retaliation for him having filed a grievance, the disciplinary committee’s finding that Plaintiff bit Defendant Parrish would not necessarily be undermined. Accordingly, Defendants’ motion for summary judgment (Doc. 204) is

DENIED.

DONE AND ORDERED at Jacksonville, Florida, this 30th day of August 2021.

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BRIAN/I, DAVIS

United States District Judge Jax-6 Cc: Counsel of Record