                                                        [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT           FILED
                      ________________________ U.S. COURT OF APPEALS
                                                       ELEVENTH CIRCUIT
                             No. 10-10508                 AUG 25, 2011
                                                           JOHN LEY
                         Non-Argument Calendar               CLERK
                       ________________________

                  D.C. Docket No. 9:08-cv-80940-KAM

RODGER LOVETTE,

                                                          Plaintiff - Appellant,

     versus

LORVIA PAUL,

                                                        Defendant - Appellee,

SUSAN CICIRRELLI,
et al.,

                                                                   Defendants.

                      ________________________

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

                            (August 25, 2011)

Before EDMONDSON, WILSON and BLACK, Circuit Judges.
PER CURIAM:

      Plaintiff-Appellant Rodger Lovette appeals an unfavorable jury verdict on

his section 1983 pro se prisoner complaint alleging that Defendant-Appellee

prison guard Lorvia Paul retaliated against Plaintiff in violation of his First

Amendment rights. No reversible error has been shown; we affirm.

      The essence of Plaintiff’s First Amendment claim is that Paul filed a

disciplinary report -- that Plaintiff argues was false -- in retaliation for grievances

that Plaintiff had filed against Paul. “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 grievance concerning the conditions of his imprisonment.”

Boxer X v. Harris, 437 F.3d 1107, 1112 (11th Cir. 2006). To state a First

Amendment retaliation claim under section 1983, a prisoner must show that (1) his

speech was constitutionally protected; (2) he suffered adverse action such that the

administrator’s allegedly retaliatory conduct likely would deter a person of

ordinary firmness from engaging in such speech; and (3) a causal relationship

existed between that retaliatory act and the protected speech. Smith v. Mosley,

532 F.3d 1270, 1276 (11th Cir. 2008).

      The heart of Plaintiff’s argument on appeal is that he presented sufficient

evidence to the jury that the disciplinary report issued by Paul was false and was

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written in retaliation for grievances filed against Paul. In sum, Plaintiff argues the

jury reached the wrong result. But in reviewing the record, we must neither

second-guess the jury nor substitute our own judgment for that of the jury if the

jury’s verdict is supported by sufficient evidence. See Brochu v. City of Riviera

Beach, 304 F.3d 1144, 1155 (11th Cir. 2002). And because Plaintiff made no

motion for a directed verdict, see Wilson v. Attaway, 757 F.2d 1227, 1237 (11th

Cir. 1985) (“sufficiency of the evidence supporting jury verdict is not reviewable

on appeal ... unless a motion for directed verdict was made at the close of all

evidence”), we review only “whether there was any evidence to support the jury’s

verdict, irrespective of its sufficiency, or whether plain error was noted which, if

not noticed, would result in a manifest miscarriage of justice.” Id. (internal

quotations omitted).

      The jury found that Plaintiff ‘s grievance was constitutionally protected

speech; he satisfied the first part of the retaliation test. But evidence existed that

the second and third parts of the retaliation test were not satisfied. About the

second part, Plaintiff admitted that Paul’s alleged retaliatory filing of a

disciplinary report did not deter him from filing further grievances. About the

third part, the jury heard testimony that Paul followed applicable procedure in

issuing the disciplinary report and was not motivated to act in retaliation for

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Plaintiff’s grievances against her. Although Plaintiff testified that the disciplinary

report was falsified, Plaintiff admitted that he had been convicted of a crime of

dishonesty in the last ten years. The jury was free to believe the testimony of

Defendant Paul rather than Plaintiff’s protestations of innocence.

       We have considered all arguments advanced by Plaintiff; no reversible error

has been shown.*

       AFFIRMED.




       *
          Plaintiff’s argument that the jury instructions were misleading is without merit. The
bases of his challenge on appeal are that (i) the instructions were misleading because they were
not tailored to the facts of this case; and (ii) the instructions’ requirement that the jury find that
Plaintiff was “intentionally retaliated against” is a misstatement of the law. No objection on
these bases was made below; plain error review applies. “When reviewing a jury instruction
under the plain error standard, we will reverse only in exceptional cases where the error is so
fundamental as to result in a miscarriage of justice.” Montgomery v. Noga, 168 F.3d 1282, 1294
(11th Cir. 1999) (internal quotations and citations omitted). The court’s jury instructions were not
plainly erroneous. The instructions were tailored to the facts of the case and were modeled on
the Eleventh Circuit’s pattern jury instructions. Error in the instructions -- if error exists -- is
neither plain nor fundamental.

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