PATE

v.

PEEL

RODGERS, United States Magistrate Judge.

Plaintiff filed this case pursuant to 42 U.S.C. § 1983. He proceeds

pro se

and

in forma pauperis

under the terms of the Prison Litigation Reform Act. The matter is before this court upon consent of the parties and referral by the district court pursuant to 28 U.S.C. § 636(c). (Doc. 46). Pending are Defendant’s special report (doc. 24), which the court directed Defendant to file in response to Plaintiffs amended complaint (doc. 8), and Plaintiffs reply to the special report (doc. 27).

1

The court previously advised the parties that Defendant’s special report would be treated as a motion for summary judgment under FED.R.CIV.P. 56 and informed them of the importance and ramifications of Rule 56 summary judgment consideration. (Doc. 29).

Background

Plaintiff, a state inmate at the time he initiated this case,

2

was housed at Apala-chee Correctional Institution (“ACI”) when the events giving rise to his amended complaint occurred. Plaintiff names as the sole defendant in this action Michael Peel, a nurse practitioner at ACI.

Plaintiff sets forth in his amended complaint the following allegations.

3

In 1985 he was diagnosed as being HIV [human immunodeficiency virus] positive and is “currently on a salvaged regimine [sic] of combination therapy, including¹⁵ pills per day to battle this virus .... ” (Doc. 8 at 7). Since 1998 Plaintiffs medical records have reflected that he also suffers from “bashful bladder syndrome” (“BBS”), a condition which prevents him from urinating in public or giving urine samples for drug screens.

(Id.).

Additionally, at the time Plaintiff contracted HIV he became infected with Hepatitis C, “a liver condition [ ] more critical than any other medical condition he suffers from.”

(Id.).

Plaintiff began treatment at the Chronic Illness Clinic (“CIC”) of the Department of

*1331

Corrections (“DOC”) in 1999 for his HIV and Hepatitis C conditions.

(Id.).

Defendant was “privy” to Plaintiffs medical history but “purposely disregarded” it when he refused on January⁸, 2001,

4

to issue Plaintiff a medical pass regarding his BBS, “as required by F.D.O.C. policy.”

5

(Doc. 8 at 8). Plaintiff submitted a grievance with respect to this matter on January⁹ which was denied and returned to him on January 19.

6

(Id.).

On January²², when Plaintiff presented to the CIC for treatment, Defendant asked him whether he had any concerns regarding the quality of his medical care in light of the grievance and whether he planned to continue to pursue his grievance.

(Id.).

When “Plaintiff responded [in] the affirmative the defendant became short in response and conveyed a serious attitude.”

(Id.).

Defendant also informed Plaintiff “that his liver profile was elevated to the bad and that [there was] a significant decline in CD blood cells (100) to the bad,” which would be monitored closely.

(Id.).

On January 25 the classification committee changed Plaintiffs job assignment to the field force squad, a position which involved very physically demanding work.

7

(Id.).

Plaintiff informed the classification supervisor that he had a current, valid pass which restricted him from standing more than fifteen minutes at a time, and he explained that he therefore should not be assigned to such arduous work.

(Id.).

The supervisor advised Plaintiff that Defendant had canceled his pass and had cleared bim for the field force squad; according to Plaintiff, Defendant must have taken these actions “between²² Jan. — 24 Jan. 2001.”

(Id.).

Plaintiff completed the first and second days of his field force squad assignment on January 30 and 31. The work required him to dig and remove tree stumps weighing over five hundred pounds.

(Id.).

The following two days, February¹ and², Plaintiff was required to handle approximately¹⁶,800 pounds of potatoes, which included rebagging the potatoes into one hundred-seventy sacks each weighing one hundred pounds, then throwing the sacks onto a truck.

(Id.).

The evening of February² Plaintiff had severe abdominal pain and swelling in the region of his liver. He declared a medical emergency and was admitted to the ACI infirmary. (Doc. 9). Plaintiff was released from the infirmary the following morning but returned on February⁴ complaining of “incredible pain.”

(Id.).

Plaintiff was then transported to Jackson Memorial Hospital for tests, following which he was taken back to the

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ACI infirmary. On February⁵ Dr. Huynh advised Plaintiff that he was suffering from liver failure and discharged Plaintiff to the dormitory with instructions to rest.

(Id.).

On February⁶, when Plaintiff continued to experience pain, Dr. Huynh referred him to Chattahoochee State Hospital for additional tests. Upon his return that day Plaintiff was placed in the ACI infirmary until his release to the general population on February 12. At the time of his discharge from the infirmary tests showed that Plaintiffs liver enzymes were “seriously elevated.” He was issued medical passes which prescribed no prolonged standing and no lifting or pulling over twenty pounds.

(Id.).

Plaintiff asserts two claims: (1) that Defendant retaliated against him for grieving his denial of a medical pass for BBS by removing Plaintiffs existing medical pass and clearing him for assignment to field work; and (2) that Defendant’s actions constituted deliberate indifference to his known serious medical conditions. For the alleged violations of his rights under the First and Eighth Amendments

8

Plaintiff seeks compensatory and punitive damages and a written apology from Defendant.

In his special report Defendant argues that Plaintiff has failed to raise even a colorable suspicion of retaliation under the First Amendment.

9

(Doc. 24 at 16). First, according to Defendant, the evidence demonstrates that his January²² decision approving Plaintiff for field force duty

10

was medically appropriate and proper based on Plaintiffs then-current condition. Moreover, Dr. Huynh, who reviewed and denied Plaintiffs February⁸ grievance regarding his job reassignment, concurred with Defendant’s medical judgment, as did the ACI Senior Health Services Administrator (“SHSA”).

(Id.

at 16, 23, citing Exh. C).

11

Second, as noted by

*1333

the SHSA in Plaintiffs medical record, Plaintiffs grievance regarding the denial of the BBS pass was “invalid,” indeed was frivolous. The grievance therefore had absolutely no effect on Defendant’s decision.

(Id.

at 16-17). Defendant’s denial of the pass was mandatory, not discretionary, according to DOC directives which did not permit the issuance of a medical pass for BBS. Instead, as required, Defendant noted in the medical record Plaintiffs asserted inability to void in public.

12

Third, Plaintiffs medical records show that the CIC appointment at which Defendant allegedly was “short” with Plaintiff in discussing his grievance did not occur on January²² as Plaintiff alleges. Rather, this appointment took place on January²³, which was after Defendant had already tentatively approved Plaintiff for work on the field force squad on January 22.

(Id.

at 18). Defendant maintains that Plaintiff has failed to raise factual allegations sufficient to demonstrate any intent to retaliate and thus that this claim should be dismissed.

(Id.

at 19).

Defendant argues that Plaintiffs Eighth Amendment claim also fails. Defendant contends that the evidence does not show that he disregarded a serious risk of harm to Plaintiff and that at most it simply demonstrates a difference in medical opinion.

(Id.

at 22). His decision to approve Plaintiff for work was based on his professional opinion that Plaintiffs medical condition permitted it: Plaintiff had a very muscular physique due to weight lifting; his conditions did not automatically preclude performing physical labor; and his medical records indicated that his conditions were stable at that time.

(Id.).

Moreover, Defendant specified on the record that his approval was “tentative” and would be re-evaluated as necessary. Additionally, Dr. Huynh and the SHSA agreed with Defendant’s work assignment decision.

(Id.

at 23). Dr. Huynh also opined in an April³ entry in Plaintiffs medical records that there was no connection between Plaintiffs placement on the field force squad and any aggravation of his HIV or Hepatitis C conditions.

(Id.

at 25, citing Exh. W). Defendant also maintains that, contrary to Plaintiffs assertion, he did not assign Plaintiff to the field force squad; instead, although he approved placement for such an assignment, the final determination actually was made by the classification committee. Defendant maintains that the evidence shows that he was not deliberately indifferent to Plaintiffs serious medical condition and thus that his conduct was not violative of the Eighth Amendment.

Defendant also asserts his entitlement to Eleventh Amendment immunity and qualified immunity with regard to both of Plaintiffs claims, and he contends that Plaintiff is not entitled either to compensatory or punitive damages.

(Id.

at 28).

Plaintiff filed a reply to Defendant’s special report, which includes a “declaration,” a supplemental brief, and his own affidavit. (Doc. 27 at 1-3, 4-19, and 19-22, respectively, as numbered by the court). Plaintiff has also submitted additional medical records, including laboratory results from October 2000, from January-April 2001, and from as recently as October 2001.

(Id.

at 42-60). Attached to the reply are certain other records as well, such as an ACI change of classification notice dated July⁸, 1999, assigning Plaintiff to work as a weld

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er, and one dated February²⁰ reassigning Plaintiff to work as a welder from his former position on the field force squad.

(Id.

at 25-60). For the most part Plaintiffs declaration, supplemental brief, and affidavit simply reiterate the allegations made in the amended complaint. Plaintiff also asserts that his ability to work, even after his release from incarceration, has been compromised by liver damage which he sustained as a result of the strenuous labor he was required to perform on the field force squad. Additionally, in his brief Plaintiff contends that Defendant has “manipulated” his extensive medical record of nearly 2000 pages by selectively presenting only certain documents with his special report. According to Plaintiff, he was treated by numerous specialists, whose prescribed treatments and passes Defendant fully complied with until the January 2001 events complained of in this action.

(Id.

at 10). Plaintiff asserts that Defendant “misrepresented facts and made per-jur[iou]s statements in his special report and affidavit.”

(Id.).

Plaintiff submits that for these reasons the court should not grant summary judgment in Defendant’s favor or, in the alternative, that it should stay this matter “until necessary information is obtained” by him through discovery.

(Id.

at 19).

Legal Standards

Summary Judgment

A motion for summary judgment should be granted when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56;

Celotex Corp. v. Catrett,

477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). A factual dispute is “ ‘genuine’ if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”

Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is “material” if it “might affect the outcome of the suit under the governing [substantive] law.”

Id.; accord Tipton v. Bergrohr GMBH-Siegen,

965 F. 2d 994, 998 (11th Cir.1992). Evidence presented in opposition to the motion for summary judgment, and all factual inferences arising from it, must be viewed in the light most favorable to Plaintiff.

Adickes v. S.H. Kress & Co.,

398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970);

Jones v. Cannon,

174 F. 3d 1271, 1281 (11th Cir.1999). To overcome a motion for summary judgment, the non-moving party must either point to evidence in the record or present additional factual evidence sufficient to withstand a directed verdict motion at trial based on the alleged evidentia-ry deficiency.

Celotex,

477 U.S. at 324, 106 S.Ct. 2548;

Hammer v. Slater,

20 F. 3d 1137, 1141 (11th Cir.1994)

(en

banc).

Qualified Immunity

“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 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, 73 L.Ed.2d 396 (1982)). “The purpose of this immunity is to allow government officials to carry out their discretionary duties without the fear of personal liability or harassing litigation, protecting from suit all but the plainly incompetent or one who is knowingly violating the federal law.”

Lee v. Ferraro,

284 F. 3d 1188, 1194 (11th Cir.2002) (internal quotation marks and citations omitted). To receive qualified immunity, “the public official must first prove that he was acting within the scope of his discretionary authority when

*1335

the allegedly wrongful acts occurred.”

Id.

(internal quotation marks omitted). “Once the defendant establishes that he was acting within his discretionary authority, the burden shifts to the plaintiff to show that qualified immunity is not appropriate.”

Id.

The Supreme Court has set forth a two-part test for the qualified immunity analysis. “The threshold inquiry a court must undertake in a qualified immunity analysis is whether [the] plaintiffs allegations, if true, establish a constitutional violation.”

Hope v. Pelzer,

536 U.S. 730, 122 S.Ct. 2508, 2513, 153 L.Ed.2d 666 (2002) (citing

Saucier v. Katz,

533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)). “If no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity.”

Saucier,

533 U.S. at 201, 121 S.Ct. 2151. “If a constitutional right would have been violated under the plaintiffs version of the facts, ‘the next, sequential step is to ask whether the right was clearly established.’ ”

Yin-yard,

311 F. 3d at 1346 (quoting

Saucier,

533 U.S. at 201,121 S.Ct. 2151).

DISCUSSION

Before it commences its analysis of Plaintiffs claims, the court notes the following.

First, Plaintiff complains in his reply that Defendant has presented only selected medical records with his special report and has made false or misleading statements. Plaintiff does not, however, identify with any specificity the allegedly false or misleading statements in Defendant’s special report or the medical records which Defendant should have provided. Plaintiff also does not explain how the statements or omissions of medical records misrepresent the facts of this case. Furthermore, at the time the court advised the parties that it would treat Defendant’s special report as a motion for summary judgment it specifically provided them with the opportunity to file motions for discovery if they wished; Plaintiff failed to do so.

(See

docs. 29 and 32). Accordingly, the court will not deny Defendant’s motion for summary judgment on this basis or stay the instant matter, as Plaintiff has requested.

Second, Plaintiff filed a “Motion for Judicial Notice,” in which he describes events occurring in July and August 2002 which involve Defendant. (Doc. 51). Plaintiff “asks this court to see a continued c[h]ronological order of events that show [a] record of continued retaliation and deliberate indifference.”

(Id.).

The matters raised in Plaintiffs motion are not relevant to the claims in this action that Defendant retaliated against Plaintiff on January²², 2001, by clearing him for field force duty and that Defendant was deliberately indifferent to his serious medical needs at that time. Plaintiffs motion is therefore denied.

Third, Plaintiff states in the amended complaint that he sues Defendant in both his individual and official capacities (doc. 8 at 1); in his reply to the special report he seems to indicate that he intends to sue Defendant in his individual capacity only (doc. 27 at 15). In any event, Defendant’s argument that he is entitled to immunity from damages in his official capacities under the Eleventh Amendment is well taken and requires little discussion. The law is well settled that the Eleventh Amendment is an absolute bar to suit for monetary damages by an individual • against a state or its agencies, or against officers or employees of the state or its agencies in their official capacities.

Kentucky v. Graham,

473 U.S. 159, 169, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985);

Hobbs v. E.E. Roberts,

999 F. 2d 1526, 1529-30 (11th Cir.1993). The court therefore considers Plaintiffs claims for monetary dam

*1336

ages against Defendant in his individual capacity only.

Fourth, general claims of retaliation are those which involve an egregious abuse of governmental power or behavior which shocks the conscience and may be brought under the due process clause of the Fourteenth Amendment; a claim that a plaintiff was penalized for the exercise of a specific constitutional right, however, is properly considered under the First Amendment.

See Thaddeus-X v. Blatter,

175 F. 3d 378, 387 (6th Cir.1999)

(en banc)

(plurality opinion) (citing the Supreme Court’s disapproval in

Graham v. Connor,

490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) of some lower courts’ reliance on more generalized substantive due process standards where complained-of conduct is covered by explicit provision in the Constitution). As Plaintiff in the instant case alleges that he suffered retaliation for the exercise of a specific right, i.e., the right to seek the redress of grievances, the court concludes that his claim is properly considered solely under the First Amendment. With respect to Plaintiffs medical claim, the court notes that “the Eighth Amendment, which is specifically concerned with the unnecessary and wanton infliction of pain in penal institutions, serves as the primary source of substantive protection to convicted prisoners ....”

Whitley v. Albers,

475 U.S. 312, 327, 106 S.Ct. 1078, 1088, 89 L.Ed.2d 251 (1986). Thus the court addresses Plaintiffs claim of deliberate indifference only under the Eighth Amendment.

First Amendment Claim

It is well established that a prisoner’s constitutional rights are violated if adverse action is taken against him in retaliation for the exercise of his First Amendment rights.

See Farrow v. West,

320 F. 3d 1235, 1248 (11th Cir.2003);

Mitchell v. Farcass,

112 F. 3d 1483, 1490 (11th Cir.1997);

Wright v. Newsome,

795 F. 2d 964 968 (11th Cir.1986);

Adams v. James,

784 F. 2d 1077, 1080 (11th Cir.1986). In the prison setting “[t]he state may not burden [First Amendment rights] with practices that are not reasonably related to legitimate penological objectives ... nor act with the intent of chilling that First Amendment right.”

Harris v. Ostrout,

65 F. 3d 912, 916 (11th Cir.1995) (citing

Turner v. Safley,

482 U.S. 78, 85-89, 107 S.Ct. 2254, 2260-61, 96 L.Ed.2d 64 (1987), and

Wildberger v. Bracknell,

869 F. 2d 1467, 1468 (11th Cir.1989)). In general, a prisoner may 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 (citing

Wildberger,

869 F. 2d at 1468). The prisoner must, however, come forward with more than “general attacks” upon a defendant’s motivations and must produce “affirmative evidence” of retaliation from which a jury could find that plaintiff had carried his burden of proving the requisite motive.

Crawford-El v. Britton,

523 U.S. 574, 600, 118 S.Ct. 1584, 1598, 140 L.Ed.2d 759 (1998) (citations omitted). A prisoner does not automatically cast doubt upon an institutional decision, nor is the decision “subject to exhaustive challenge,” solely because he was engaged in a First Amendment right.

Adams,

784 F. 2d at 1082;

Adams v. James,

797 F.Supp. 940, 949 (M.D.Fla.1992). Even though prison officials do not have the authority to prohibit inmates from filing grievances it does not follow that every time an inmate files a grievance the act of doing so renders the exercise of prison authority suspect.

See Adams,

784 F. 2d at 1082. Indeed, while mindful that a plaintiff may not be held to a heightened burden of proof,

see Craw-fordr-El,

523 U.S. at 580-86, 118 S.Ct. 1584 (holding that in retaliation claim prisoner could not be required to show “clear and

*1337

convincing” evidence of defendant’s unconstitutional motives), courts should approach prisoner claims of retaliation “with skepticism and particular care” due to the “near inevitability” that prisoners will take exception with the decisions of prison officials and “the ease with which claims of retaliation may be fabricated.”

Dawes v. Walker,

239 F. 3d 489, 491 (2nd Cir.2001),

impliedly overruled in part on other grounds by Swierkiewicz v. Sorema

N.A., 534 U.S. 506, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002).

The Eleventh Circuit has not yet directly established a clear standard at summary judgment for determining the validity of First Amendment retaliation claims in the prison setting. In the public employment setting, however, it has adopted a four-stage inquiry based on the Supreme Court’s decisions in

Pickering v. Board of Education,

391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), and

Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle,

429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977), to determine whether a state actor has unlawfully retaliated against an employee because of the employee’s protected speech.

See Chesser v. Sparks,

248 F. 3d 1117 (11th Cir.2001);

Stanley v. City of Dalton,

219 F. 3d 1280 (11th Cir.2000);

Bryson v. City of Waycross,

888 F. 2d 1562, 1565 (11th Cir.1989).

In such cases, at the first stage the court considers as a matter of law whether the speech at issue may be fairly characterized as constituting speech on a matter of public concern.

Chesser,

248 F. 3d at 1122. If it may be, at the second stage the court applies a balancing test to determine whether as a matter of law the employee’s free speech interest outweighs the interest of the state in promoting the efficiency of the public services it performs through its employees.

Pickering,

391 U.S. at 568, 88 S.Ct. 1731. If the employee’s interests outweigh those of the state, the inquiry proceeds to the third stage, which asks whether as a matter of fact “there is a ‘substantial’ causal link between the employee’s speech and the adverse employment action.”

Mize v. Jefferson City Bd. of Educ.,

93 F. 3d 739, 742 (11th Cir.1996) (citing

“Bryson

” test);

see also Brochu v. City of Riviera Beach,

304 F. 3d 1144, 1157 (11th Cir.2002) (citing

Mount Healthy,

429 U.S. at 287, 97 S.Ct. 568). The record as a whole should be examined to determine whether a plaintiff has met his burden of showing that the protected conduct was a substantial or motivating factor in a government employment decision.

Stanley,

219 F. 3d at 1291 (citations omitted).

13

With respect to the third stage of the four-stage inquiry, “[wjhere causation is lacking, an employee’s claim of retaliatory discharge must fail .... ”

Mize,

93 F. 3d at 742.

If the employee shows that his speech was a substantial motivating factor in the adverse decision, the court must address at the fourth stage whether the employer has shown by a preponderance of the evidence that it would have reached the same decision regardless of the protected conduct.

Id.

at 1123;

Bryson,

888 F. 2d at

*1338

1566 (quoting

Mt. Healthy,

429 U.S. at 287, 97 S.Ct. 568).

See also Vista Community Services v. Dean,

107 F. 3d 840, 844-45 (11th Cir.1997). “This fourth stage has been referred to as a ‘but for’ test; the employer must show that ‘its legitimate reason, standing alone, would have induced it to make the same decision.’ ”

Bryson,

888 F. 2d at 1566 (quoting

Price Waterhouse v. Hopkins,

490 U.S. 228, 258, 109 S.Ct. 1775, 1795, 104 L.Ed.2d 268 (1989)). In other words, the question at stage four is whether the plaintiff would have suffered the adverse action “but for” his exercise of speech protected by the First Amendment.

See Givhan v. Western Line Consol. Sch. Dist.,

439 U.S. 410, 417, 99 S.Ct. 693, 697, 58 L.Ed.2d 619 (1979).

While there is a lack of clear guidance from the Eleventh Circuit with regard to First Amendment retaliation claims made by prisoners, other circuits have addressed the matter, resulting in the development of an instructive body of case law. The Second, Third, Sixth, and Seventh Circuits have expressly applied the

Mount Healthy

burden-shifting framework to retaliation claims in the prison context.

See Rauser v. Horn,

241 F. 3d 330 (3rd Cir.2001);

Thaddeus-X,

175 F. 3d at 386;

Graham v. Henderson,

89 F. 3d 75, 80 (2d Cir.1996);

Babcock v. White,

102 F. 3d 267, 275 (7th Cir.1996). Under this line of cases the plaintiff must prove: (1) that he was engaged in constitutionally protected activity; (2) that he suffered adverse action such that would deter a person of ordinary firmness from continuing to engage in that conduct; and (3) that “there is a causal connection between elements one and two — that is, the adverse action was motivated at least in part by the plaintiffs protected conduct.”

Brown v. Crowley,

312 F. 3d 782, 787 (6th Cir.2002) (citing

Thaddeus-X); see also Rauser,

241 F. 3d at 333-34;

Dawes,

239 F. 3d at 492-93. If the prisoner establishes that his exercise of the protected right was a substantial or motivating factor in the defendant’s alleged retaliatory conduct, the burden then shifts to the defendant to show that the same action would have been taken even absent the protected conduct.

14

Brown,

312 F. 3d at 787;

Rauser,

241 F. 3d at 333-34;

Babcock,

102 F. 3d at 275. In the context of prisoner cases, in determining whether a causal connection exists the court may choose to consider such factors as the temporal proximity between the prisoner’s protected activity and the defendant’s adverse action, as well as statements made by the defendant regarding his motivations.

See Colon v. Coughlin, 58

F. 3d 865, 872-73 (2nd Cir.1995). A prisoner can establish retaliatory motive by alleging a chronology of events from which a retaliatory animus on the part of the defendant could reasonably be inferred.

Woods,

60 F. 3d at 1166 (citing

Cain v. Lane,

857 F. 2d 1139, 1143 n. 6 (7th Cir.1988)).

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Other circuits have also recognized

Mount Healthy

in reviewing retaliation claims by prisoners but without adopting its burden-shifting framework.

See Peterson v. Shanks,

149 F. 3d 1140, 1144 (10th Cir.1998) (requiring prisoner to come forward with direct or circumstantial evidence that “but for the retaliatory motive, the incidents to which he refers ... would not have taken place”);

Goff v. Burton,

Mount Healthy

but stating that in retaliatory transfer case prisoner must prove “but for” the retaliatory motive the allegedly unconstitutional conduct would not have occurred);

cf. Woods v. Smith,

60 F. 3d 1161, 1166 (5th Cir.1995) (citing

Mount Healthy

but indicating that burden remains on prisoner to show that “but for” the retaliatory motive the complained of incident would not have occurred);

McDonald v. Hall,

610 F. 2d 16, 18 (1st Cir.1979) (same).

15

This court is not aware of any case to date in which the Eleventh Circuit has expressly applied the

Pickering/Mount

Healthy analysis in the context of a prisoner First Amendment retaliation claim. As noted above, however, in the employment setting the Eleventh Circuit has long employed this analysis.

See Bryson, supra; see also Chesser

and

Stanley, supra.

In addition, as previously discussed, numerous circuit courts of appeals have found prisoner and employment retaliation claims sufficiently analogous to adopt or acknowledge the standard in prisoner cases, either with or without the burden-shifting framework.

16

See Rauser, Thaddeus-X, Graham,

and

Babcock, supra

(applying the

Mount Healthy

burden-shifting analysis), and

Peterson, Goff, Woods,

and

McDonald, supra

(referencing

Mount Healthy

but not applying the burden-shifting analysis);

see also Adams v. Wainwright,

875 F. 2d at 1537 (declining to adopt “but for” standard in prisoner First Amendment retaliation case which would place greater burden of proof on inmate). Accordingly, the court concludes that in this circuit it is appropriate to apply the

Mount Healthy

burden-shifting framework to First Amendment claims of retaliation brought by prisoners and shall do so in this case.

As Defendant asserts his entitlement to qualified immunity, the court first addresses the question of whether Plaintiffs allegations regarding Defendant’s conduct, if true, establish the violation of a constitutional right.

Saucier,

533 U.S. at 201, 121 S.Ct. 2151. To make this showing and survive summary judgment, Plaintiff must demonstrate from the evidence that a genuine issue of material fact exists on the questions whether he was

*1340

engaged in constitutionally protected activity; whether he suffered adverse action; and whether his exercise of the protected right was a substantial or motivating factor in the defendant’s alleged retaliatory conduct.

See Celotex,

477 U.S. at 324, 106 S.Ct. 2548;

Mount Healthy,

429 U.S. at 287, 97 S.Ct. 568;

Stanley,

219 F. 3d at 1290;

Rauser,

241 F. 3d at 333-34;

Thaddeus-X,

175 F. 3d at 386;

Dawes,

239 F. 3d at 492-93. In this case, Defendant does not dispute that Plaintiff engaged in protected activity by filing his grievance or that Plaintiffs transfer to field force duty as a consequence, if true, would constitute an adverse action. In any event, the court shall assume that Plaintiff has met his burden with respect to demonstrating that filing his January⁹ grievance challenging the denial of the BBS pass was a constitutionally protected activity.

17

The court shall likewise assume that Plaintiff has shown that, in being cleared for arduous field force duty after having been assigned to a less demanding welding job, he suffered an adverse action.

The court concludes, however, that Plaintiff has failed to demonstrate on this record the existence of a genuine material fact as to whether his fifing the grievance was a substantial or motivating factor in Defendant’s decision to transfer him to field force duty.

Stanley,

219 F. 3d at 1291. As noted, a prisoner can establish retaliatory motive by alleging a chronology of events from which the defendant’s retaliatory animus could reasonably be inferred.

Woods,

60 F. 3d at 1166. Plaintiff in this case has presented the following chronology of events relative to his retaliation claim: that as of July 1999 Plaintiff was assigned to duty as a welding aide with a work restriction limiting him to standing no longer than fifteen minutes; that Plaintiff filed a grievance on January⁹ complaining about Defendant’s refusal on January⁸ to issue him a pass for bashful bladder syndrome; that on January²² Defendant asked him during a CIC appointment whether he planned to continue to pursue his grievance and acted “short” and “serious”

18

with him when Plaintiff indicated that he would so continue; that Defendant canceled his “no standing” pass and medically approved him for field force work some time between January²² and January²⁴; that on January 25 the classification committee changed Plaintiffs job assignment to the field force squad based upon Defendant’s medical approval; that after working on the field force squad from January 30 through February² Plaintiff suffered severe abdominal pain which resulted in his undergoing numerous medical tests and being housed in the infirmary for approximately one week; and that after his discharge from the infirmary Plaintiff was reissued his prior medical passes which prescribed no prolonged standing and no lifting or pulling over twenty pounds and reassigned to a welding job.

Contrary to Plaintiffs assertion, the record evidence shows that Plaintiffs appointment with Defendant, at which he contends Defendant was “short” with Plaintiff upon being advised that Plaintiff intended to pursue his grievance, did not take place on January 22. Rather, the appointment occurred on January²³, one day

after

Defendant had already cleared Plaintiff for

*1341

duty on the field force squad.

19

(Doc. 24, Exhs. L and M). Thus on the record it appears that no causal connection exists between Plaintiffs advising Defendant on January²³ that he intended to continue to pursue his grievance and Defendant’s making his decision to clear Plaintiff for field force duty on January 22. Nevertheless, the temporal proximity between Plaintiffs filing his grievance on January⁹ and Defendant’s making his decision does provide some circumstantial support for a causal connection.

See Stanley,

219 F. 3d at 1291;

Thaddeus-X,

175 F. 3d at 399 (circumstantial evidence, such as the timing of events, may be evidence of motivation). This evidence alone, however, is not sufficient to meet Plaintiffs burden of showing that the filing of his grievance was a substantial or motivating factor in Defendant’s conduct.

See Mize,

93 F. 3d at 745. “It does not follow [ ] that every time a person engages in constitutionally protected activity within a short time prior to an [adverse action] that an inference may reasonably be drawn that they were related.”

Id.; see Adams,

784 F. 2d at 1082 (noting that an inmate’s filing a grievance does not consequently render the exercise of prison authority suspect). In the instant case, the temporal connection between Plaintiffs filing his grievance on January⁹ and Defendant’s making his decision on January²² is the sole evidence of record to which Plaintiff can point in support of his claim of retaliatory animus.

20

Such evidence simply is insufficient to permit a reasonable inference that Defendant’s action was motivated by a desire to retaliate.

See Mize,

93 F. 3d at 745. There is absolutely no evidence that Defendant had any reason to retaliate against Plaintiff. In fact, the evidence suggests that the professional relationship between Plaintiff and Defendant prior to January⁸ was fairly good. Plaintiff notes in his affidavit that Defendant “had always conducted himself in a professional manner until this malicious act.” (Doc. 27 at 21). Moreover, Plaintiff does not dispute Defendant’s statement in his affidavit that

Prior to denying Inmate Pate’s request for a bashful bladder pass we had enjoyed a very workable patient/provider relationship. Inmate Pate had openly commented on his confidence in my abilities, knowledge, and judgment. Additionally, Inmate Pate had requested permission to remain as part of my patient caseload rather than being seen by the institutional physician.

(Doc. 24, Exh. Y).

In addition, Plaintiff does not challenge Defendant’s assertion that under DOC policy and regulations

21

Defendant had no authority to grant Plaintiff the requested pass. (Doc. 24, Exh. Y). Moreover, Plaintiff does not dispute, and in fact his medical records support, Defendant’s statement that in accordance with DOC policy he noted that Plaintiff had “voiced a concern [with] his inability to void in public.” (Doc. 24, Exhs.K, Y). In addition, on January¹⁶, which was prior to Defendant’s January²² decision to clear Plaintiff for field work, the SHSA supported Defendant’s action by noting in the medical record that the grievance was denied as invalid because there were procedures in place to handle such situations.

(Id.,

Exh. L). On January¹⁹ Dr. Huynh also approved and explained the denial of the BBS pass

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in his written response to Plaintiffs grievance.

(Id.,

Exh. A).

Plaintiff has produced no “affirmative evidence” that Defendant was motivated to retaliate against him on January²² simply because on January⁹ Plaintiff filed a grievance complaining of Defendant’s refusal to issue a BBS pass.

See Crawford-El,

523 U.S. at 600,118 S.Ct. 1584. Defendant’s denial of a BBS pass was required by DOC policy and had already been approved by two of his superiors at the time of his decision to clear Plaintiff for unrestricted duty. Defendant had no reason to expect any adverse consequences to him as a result of Plaintiffs grieving the denial of the BBS pass, and Plaintiff has offered nothing which supports a finding of other retaliatory motive. The court concludes that Plaintiff has failed to present evidence which supports a reasonable inference of retaliatory animus. Plaintiffs bare allegation of malice on the part of Defendant is not enough to raise a genuine issue of material fact on the issue of causation.

Id.

at 588, 118 S.Ct. 1584;

see also Thaddeus-X,

175 F. 3d at 399.

Notwithstanding, even assuming that Defendant’s decision was influenced in substantial part by Plaintiffs grievance and thus that a causal connection has been demonstrated, the court concludes that Defendant has met his burden of showing he would have taken the same action regardless whether Plaintiff had filed a grievance. Defendant states that he based his decision to clear Plaintiff for field work on Plaintiffs physical appearance, which was very muscular from weight lifting; his professional opinion that the nature of Plaintiffs conditions did not automatically preclude Plaintiff from performing physical labor; and Plaintiffs medical records which indicated that Plaintiffs conditions were stable at that time. Dr. Huynh’s statement that although Plaintiff had an “extensive and complex past health history, [his] current status has actually been quite good” (doc. 24, exh. C) lends support to Defendant’s contentions. Dr. Huynh also noted in Plaintiffs medical records on February⁵ that Plaintiff was in “general good physical condition (looks healthy and athletic).”

(Id.,

Exh. P). On February¹⁹, which was about one week after Plaintiff was released from the infirmary, Dr. Huynh made a similar comment, noting that Plaintiff was “healthy looking in appearance, muscular [inmate with] good looking complexion (re [no] cyano-sis).”

(Id,

Exh. U). Dr. Huynh also noted on February¹⁹ that “6 months after completing Interferon liver damage has been done but liver [ ] so far are not bad, evidence[d] by [normal] albumin, total bili-rubin. HIV(+) responding great to [medication].”

(Id).

Plaintiffs medical records dated November¹ and November 28 reflect unremarkable physical examinations and no recent sick call visits; on November 28 he reported “feel[ing] good.”

(Id,

Exh. H). Although Plaintiff had failed Interferon therapy for his Hepatitis C condition his HIV “labs” were “stable.”

22

(Id,

Exhs. G and H). Moreover,

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Plaintiffs own statements or actions seem to confirm that prior to his placement on the field force squad his health status had been good. For example, in his February⁸ grievance Plaintiff stated that his health was “much improved” as of January 25 and in his February²⁰ grievance he noted that he had been “very active” the previous twenty months. (Doc. 24, Exhs. C and D). Further, an entry in Plaintiffs medical records dated December¹⁹, 2000, reflects that he requested soft shoes to permit him to exercise more comfortably, yet another indication that he seemed to be feeling well not long before Defendant’s decision to clear him for field work.

(Id.,

Exh. I). The court therefore concludes that Defendant has adequately met his burden of showing that he would have made the same decision to clear Plaintiff for the field force squad absent Plaintiffs protected conduct of filing a grievance.

23

In summary, the court concludes that the record contains no evidence with respect to Plaintiffs January⁹ grievance and Defendant’s January²² decision from which a causal connection between them could reasonably be inferred. Notwithstanding, even if the evidence presented a question of fact as to causation, the court concludes that the record shows that the Defendant would have made the same decision had Plaintiff not filed the grievance. Accordingly, because there is no evidence from which a jury could reasonably conclude that Defendant violated Plaintiffs First Amendment rights, Defendant is entitled to qualified immunity and summary judgment in his favor on his retaliation claim.

Eighth Amendment Claim

Medical claims under the Eighth Amendment have an objective and subjective component, each of which additionally is considered to encompass two subsidiary requirements.

Taylor v. Adams,

221 F. 3d 1254, 1258 (11th Cir.2000), ce

rt. denied,

531 U.S. 1077, 121 S.Ct. 774, 148 L.Ed.2d 673 (2001). The “objective component” of the Eighth Amendment standard requires a determination whether the alleged wrongdoing was objectively harmful enough to establish a constitutional violation. See

Wilson v. Seiter,

501 U.S. 294, 303, 111 S.Ct. 2321, 2326, 115 L.Ed.2d 271 (1991). This objective component varies with the situation and the conduct in question and is responsive to “contemporary standards of decency.”

Estelle v. Gamble,

429 U.S. 97, 103, 97 S.Ct. 285, 291, 50 L.Ed.2d 251 (1976); see

also Rhodes v. Chapman,

452 U.S. 337, 346, 101 S.Ct. 2392, 2399, 69 L.Ed.2d 59 (1981). An objectively serious deprivation requires (1) showing an objectively “serious medical need.”

Estelle,

429 U.S. at 104, 97 S.Ct. 285. A serious medical need is one that, if left unattended, “pos[es] a substantial risk of serious harm.”

Farmer v. Brennan,

511 U.S. 825, 834, 114 S.Ct. 1970, 1977, 128 L.Ed.2d 811 (1994). In addition, an objectively serious deprivation requires (2) showing the response made by the defendant to that need was so deficient as to constitute “an unnecessary and wanton infliction of pain” and not simply “negligence] in diagnoses] or treat[ment],” or even “[mjedieal malpractice” actionable under state law.

Estelle,

429 U.S. at 105-06, 97 S.Ct. 285 (internal quotation marks omitted).

See Taylor,

221 F. 3d at 1257;

*1344

see also Farrow,

320 F. 3d at 1243. To show the required subjective intent to punish the plaintiff must demonstrate that the defendant acted with an attitude of “deliberate indifference.”

Estelle,

429 U.S. at 105, 97 S.Ct. 285. This is defined as requiring (1) an “aware[ness] of facts from which the inference could be drawn that a substantial risk of serious harm exists” and (2) the actual “drawing of] the inference.”

Farmer,

511 U.S. at 837, 114 S.Ct. 1970. In sum, in a claim of denial of medical attention under the Eighth Amendment “[u]ltimately, there are [ ] four requirements: an objectively serious need, an objectively insufficient response to that need, subjective awareness of facts signaling the need, and an actual inference of required action from those facts.”

Taylor,

221 F. 3d at 1258.

The record evidence in this case shows that after being assigned to the field force squad and working at hard labor for four days Plaintiff experienced severe abdominal pain which resulted in his being sent to the hospital twice for tests and being hospitalized in the prison infirmary for approximately one week. Plaintiffs medical records for the months immediately following also appear to reflect significantly elevated liver profile results in laboratory reports dated February⁴ (doc. exh. AA); February¹³ (doc. 27 at 55); February²⁰

(id.

at 54); March⁷

(id.

at 52); March¹⁴

(id.

at 49).

24

While this record certainly reflects Plaintiffs serious medical needs and attendant problems it is not sufficient to demonstrate that Defendant’s response to those needs was objectively insufficient and subjected Plaintiff to the “unnecessary and wanton infliction of pain” within the meaning of the Eighth Amendment.

Estelle,

429 U.S. at 105-06, 97 S.Ct. 285. The record supports Defendant’s assertion that his tentatively clearing Plaintiff for field work was a medical judgment. That in hindsight this judgment may have been poor or even that it may have constituted negligence or medical malpractice does not elevate Plaintiffs claim to a tort of constitutional dimensions.

See Estelle,

429 U.S. at 105-06, 97 S.Ct. 285;

see also Daniels v. Williams,

474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986) (stating that negligence alone is not enough to violate the Constitution);

Harris v. Thigpen,

941 F. 2d 1495, 1505 (11th Cir.1991) (indicating that a difference of opinion over matters of medical judgment does not give rise to a constitutional claim). Accordingly, Plaintiff has failed to satisfy the objective prong required in Eighth Amendment medical claims.

Even assuming,

arguendo,

that Plaintiff had satisfied the objective prong of the standard, the court concludes that he has failed to demonstrate that Defendant acted with an attitude of “deliberate indifference.”

Estelle,

429 U.S. at 105, 97 S.Ct. 285. In claiming that his assigned work exceeded his physical capacity in violation of the Eighth Amendment Plaintiff must show that Defendant knowingly permitted Plaintiff to be compelled to perform physical labor that was beyond his strength, dangerous to his health, or unduly painful.

Mays v. Rhodes,

255 F. 3d 644, 649 (8th Cir.2001). Plaintiff has not made this showing. Defendant’s assessment that Plaintiff was muscular and healthy-looking in physical appearance, that his conditions did not inherently prevent him from being physically active, and that his

*1345

medical records indicated his conditions were stable at the time of Defendant’s decision is supported by the record. Moreover, Defendant specified that his approval was “tentative” and would be reevaluated as necessary. As Defendant notes, Plaintiff could have requested such a re-evaluation, sought medical attention, or even filed a grievance regarding his transfer to the field force squad some time prior to February² if he felt unable to perform the work assigned to him; it was not until February², however, that Plaintiff complained of medical problems and not until February⁸ that he filed a grievance regarding this matter. In short, Plaintiff has not come forward with evidence showing that Defendant subjectively knew of facts from which the' inference could be drawn that approving Plaintiff for work on the field force squad presented a substantial risk of serious harm to Plaintiff and that in fact Defendant actually drew such an inference.

Farmer,

511 U.S. at 837, 114 S.Ct. 1970;

Taylor,

221 F. 3d at 1258.

Plaintiff has failed to present evidence from which a jury could reasonably conclude that Defendant violated his rights under the Eighth Amendment by approving him for field force duty on January²², 2001. Accordingly, Defendant is entitled to qualified immunity and summary judgment in his favor on Plaintiffs claim of deliberate indifference to his serious medical needs.

It is therefore ORDERED:

1. Plaintiffs request to stay this matter is DENIED.

2. Plaintiffs “Motion for Judicial Notice” (doc. 51) is DENIED.

3.Defendant’s special report (doc. 24), treated as a motion for summary judgment, is GRANTED. The clerk shall enter judgment accordingly.