                                                            [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT                     FILED
                         ________________________         U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                                                               December 28, 2006
                               No. 06-11012                  THOMAS K. KAHN
                           Non-Argument Calendar                 CLERK
                         ________________________

                     D. C. Docket No. 02-80548-CV-KLR

STEPHEN SCOTT GREEN,

                                                              Plaintiff-Appellant,

                                    versus

T. MOWERY, Captain,
W. GRAHAM, Officer,
WILLIE FLOYD, SR., Warden of Glades C.I.,
in their individual capacities,

                                                          Defendants-Appellees.

                         ________________________

                  Appeal from the United States District Court
                      for the Southern District of Florida
                        _________________________

                             (December 28, 2006)

Before TJOFLAT, BARKETT and HULL, Circuit Judges.

PER CURIAM:

     Stephen S. Green, a Florida prisoner, proceeding pro se, appeals the district
court’s grant of summary judgment to defendant T. Mowery (Mowery), Captain of

the Department of Corrections (DOC) at Glades Correctional Institution in Florida,

in his civil rights action alleging that (1) Mowery retaliated against him after he

filed a grievance against another officer in violation of the First Amendment, and

(2) he suffered cruel and unusual punishment when he was confined to an

extremely hot cell for seven days in violation of the Eighth Amendment.1 On

appeal, Green argues that the district court erred in granting Mowery’s motion for

summary judgment. Specifically, Green reiterates his First Amendment retaliation

claim, and although, he does not explicitly argue that Mowery violated his Eighth

Amendment right to be protected against cruel and unusual punishment, we

liberally construe his reference to administrative confinement as sufficient to

preserve the latter claim as well. Last, Green argues that the district court erred in

finding that Mowery was entitled to qualified immunity, and that to afford Mowery

qualified immunity results in a manifest injustice.


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          Green’s claims against the two other defendants were dismissed for failure to state a
claim upon which relief can be granted. Green does not challenge the dismissal of those claims
on appeal. Nor does he challenge the dismissal of his pendent state negligence claim. Green
also alleged that Mowery violated his Fourteenth Amendment right to equal protection by
discriminating against him based on his race. He, however, failed to preserve this issue before
the district court and he does not sufficiently raise this issue on appeal. Last, in his amended
complaint, Green argued that his Fourth Amendment rights were violated. The magistrate
judge’s report and the district court’s order, however, do not address Green’s Fourth Amendment
claim, and Green did not object to the magistrate’s report in this respect, or challenge this matter
on appeal. Accordingly, these issues are waived. See Flanigan’s Enterprises, Inc. of Georgia v.
Fulton County, Georgia, 242 F.3d 976, 987 n.16 (11th Cir. 2001).

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         We review “de novo a district court’s ruling on summary judgment,

applying the same legal standards as the district court.” Skrtich v. Thornton, 280

F.3d 1295, 1299 (11th Cir. 2002). “Summary judgment is appropriate only when

the evidence before the court demonstrates that ‘there is no genuine issue of

material fact and that the moving party is entitled to judgment as a matter of law.’”

Id. (citation omitted).    On a summary judgment motion, the record, and all

reasonable inferences that can be drawn from it, must be viewed in the light most

favorable to the non-moving party. Whatley v. CNA Ins. Cos., 189 F.3d 1310,

1313 (11th Cir. 1999). Nevertheless, conclusory allegations based on subjective

beliefs are insufficient to create a genuine issue of material fact. Leigh v. Warner

Bros., Inc., 212 F.3d 1210, 1217 (11th Cir. 2000). We may consider the plaintiff’s

sworn complaint as proof in a challenge to the grant of the defendant’s motion for

summary judgment. See Washington v. Dugger, 860 F.2d 1018, 1019 (11th Cir.

1988).

         In order to prevail on a civil rights action under § 1983, a plaintiff must

show that he or she was deprived of a federal right by a person acting under color

of state law. Griffin v. City of Opa-Locka, 261 F.3d 1295, 1303 (11th Cir. 2001).

Section 1983 requires proof of a causal connection between the actions taken by a

particular person ‘under color of state law’ and the constitutional deprivation.



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LaMarca v. Turner, 995 F.2d 1526, 1538 (11th Cir. 1993) (internal citations and

quotations omitted). Thus, the question we must address is whether an official’s

acts or omissions were the cause of the constitutionally infirm condition.

      Retaliation for filing administrative grievances violates the inmate’s right of

access to the courts and First Amendment right to exercise freedom of speech.

Wildberger v. Bracknell, 869 F.2d 1467, 1468 (11th Cir. 1989). “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 v. West, 320 F.3d 1235, 1248 (11th Cir. 2003) (internal

quotations omitted).

      We look to the Eighth Amendment for claims concerning “the treatment a

prisoner receives in prison and the conditions under which he is confined.”

Helling v. McKinney, 509 U.S. 25, 31 (1993). The Eighth Amendment applies to a

prisoner’s claim of inadequate cooling and ventilation, and this Court must look at

both the severity and the duration of the prisoner’s exposure to excessive

conditions to determine whether his rights were violated. Chandler v. Crosby, 379

F.3d 1278, 1294 (11th Cir. 2004). A prisoner’s mere discomfort, without more,

does not violate his rights under the Eighth Amendment. Id. at 1295.

      Upon review of the record, and upon consideration of the briefs of the



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parties, we discern no reversible error in the district court’s grant of summary

judgment to Mowery on Green’s First Amendment retaliation claim or on his

Eighth Amendment claim. Nor do we find error in the district court’s alternative

holding granting qualified immunity to Mowery.

      The district court did not err by granting summary judgment to Mowery on

Green’s First Amendment retaliation claim. In his sworn complaint, Green stated

that “retaliation occurred because of past complaints [he] filed.” Aside from the

grievance Green filed on July 11, 2000 against another officer, for a incident

involving the use of a telephone, he did not identify any grievances he had filed

before July 11 against Mowery. With respect to this particular grievance, however,

Green simply makes a conclusory statement of retaliation. In response, Mowery

filed an affidavit indicating that he issued the disciplinary report as a result of

threats made by Green against a prison officer in violation of the Department of

Correction rules. Green did not provide any evidence to dispute this conclusion.

      With respect to Green’s Eighth Amendment excessive heat claim, we

conclude that the district court did not err in granting summary judgment to

Mowery on this claim. Mowery provided evidence that Green’s informal July 11

grievance contained a written threat against prison officers, for which Green was

locked up for seven days in extreme conditions. However, Green did not allege



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that Mowery was responsible for the selection of his cell. Nor does he dispute that

Mowery was not involved in the assignment of the administrative confinement cell.

Thus, without more, Green has not established a causal connection between

Mowery’s issuance of the DR or any subsequent actions attributable to him, and

the alleged Eighth Amendment violation.

AFFIRMED.




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