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                                                               [DO NOT PUBLISH]



                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                  No. 17-10797
                              Non-Argument Calendar
                            ________________________

                     D.C. Docket No. 7:15-cv-00013-HL-TQL


DEMETRUIS DELFON CARTER,

                                                                Plaintiff - Appellant,

                                        versus

WARDEN MARTY ALLEN,
Individually and in his official capacity,
OFFICER ANDERSON,
Individually and in his official capacity,
OFFICER WESTLAKE,
Individually and in his official capacity,
OFFICER BARBER,
Individually and in his official capacity,

                                                             Defendants - Appellees,

DEPUTY WARDEN CALVIN ORR,
individually and in his official capacity,
et al.,

                                                                          Defendants.
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                           ________________________

                    Appeal from the United States District Court
                        for the Middle District of Georgia
                          ________________________

                                   (March 6, 2019)

Before ROSENBAUM, BRANCH, and JULIE CARNES, Circuit Judges.

PER CURIAM:

      Demetruis Carter, a Georgia prisoner represented by court-appointed counsel

on appeal, appeals following an adverse jury verdict on his claims of First

Amendment retaliation under 42 U.S.C. § 1983. He also appeals the denial of his

motion for a new trial based on the failure to appoint counsel before trial. Carter

presents three issues on appeal: (1) whether the district court plainly erred by

instructing the jury on the elements of First Amendment retaliation claims; (2)

whether the court abused its discretion by failing to appoint counsel before trial; and

(3) whether punitive damages are available for First Amendment retaliation claims

even in the absence of a physical injury. After careful review, we affirm.

                                          I.

      In October 2016, a federal jury returned a verdict against pro se plaintiff

Carter on his claims of First Amendment retaliation against Warden Marty Allen

and prison officers Rantavious Anderson, John Barber, and Tyler Westlake.




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      The evidence presented at trial showed the following. On March 27, 2014,

Anderson conducted a random patdown search of Carter. After the search, Anderson

sent Carter to administrative segregation. On April 1, Carter filed a grievance

against Anderson for squeezing his buttocks in a sexually inappropriate manner

during the patdown search. The next morning, Officers Anderson, Barber, Westlake,

and Gregory Sealy conducted a shakedown of the dormitory where Carter was

housed. During the shakedown of Carter’s cell, Barber found a contraband cell

phone encased in a bar of soap. Carter was charged with a disciplinary violation for

possession of contraband. The violation was upheld, leading to a loss of privileges.

A few months later, in July, Carter was transferred to segregation after he mentioned

to Allen the prior grievance against Anderson and that he was uncomfortable being

searched by Anderson.

      In Carter’s version of events, Anderson squeezed his buttocks inappropriately

during the patdown search. When Carter objected and said he would file a grievance,

Anderson got angry and sent him to segregation. While in segregation, Carter filed

the grievance, which caused Anderson and other officers to target his dormitory for

a shakedown. During the shakedown of Carter’s cell, Westlake produced from his

vest a bar of soap disguising a cell phone and handed it to Barber, stating that it was

for filing the grievance against Anderson. Later, Anderson was conducting patdown

searches of Carter’s dormitory on Allen’s orders. When Allen came around to


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Carter’s cell, Carter told Allen that he did not feel comfortable being searched by

Anderson because he had previously filed a grievance against him. Allen “got

angry” and placed him in segregation for insubordination.

      In the defendants’ version of events, Carter refused to allow Anderson to

conduct the patdown search on March 27. As a result, Anderson forcibly pat

searched Carter and then placed him in segregation for failure to comply with orders.

Patdown searches involve checking the crotch area of prisoners, but Anderson did

not touch Carter’s buttocks other than to check his back pockets and did not touch

Carter in a sexual manner. Further, according to the defendants, they did not know

about the grievance at the time of the shakedown, and no officer planted a cell phone.

Rather, they found the bar of soap and cell phone in a net bag that Carter was

carrying as he was about to leave for the shower while they searched his cell.

Regarding the July events, the defendants maintained that Carter was placed in

administrative segregation for protection under its normal policies for handling

allegations of sexual assault against a prison officer. The prison treated Carter’s

comments to Allen as a new allegation of sexual assault.

                                         II.

      Carter initiated this civil-rights action pro se in January 2015. Soon after, he

filed a motion for appointment of counsel, which a magistrate judge denied as

premature. The magistrate judge had just ordered Carter to refile his complaint on


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the standard 42 U.S.C. § 1983 form, and the judge explained that he could not, at

that time, properly evaluate Carter’s need for counsel. But the magistrate judge

indicated that he would “entertain this motion again at the appropriate time.”

      After Carter filed his complaint on the proper form, the magistrate judge

screened Carter’s complaint and determined that his First Amendment retaliation

claims could go forward against Warden Allen and Officers Anderson, Barber,

Sealy, and Westlake.        The district court adopted the magistrate judge’s

recommendation over Carter’s objections. These defendants filed an answer and

discovery began. The parties’ filings indicate that Carter requested but did not

receive surveillance footage of his cell on the date of the shakedown. The defendants

said that no such video footage existed. After discovery, the defendants moved for

summary judgment with supporting evidence, and Carter responded and submitted

evidence in opposition.

      A magistrate judge recommended that Carter’s retaliation claims against two

defendants—Barber and Westlake—proceed to trial but that summary judgment be

granted as to the remaining defendants. Carter objected and successfully persuaded

the district court to deny summary judgment to two additional defendants—Allen

and Anderson. Thus, the court granted summary judgment in favor of Sealy only,

and the remaining claims were set for trial.




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      A little more than a month before trial, Carter filed a motion to renew his

initial request for appointment of counsel, citing his “lack of education and mental

illness.” In his initial motion, Plaintiff had requested appointment of counsel

because (a) he could not afford counsel; (b) his imprisonment limited his ability to

litigate, as he had limited access to a law library and limited knowledge of the law;

(c) the issues in the case were complex; (d) a trial would involve conflicting

testimony and would require skilled cross-examination; and (e) he was mentally

ill—he suffered from major depressive disorder with psychotic features—and was

taking medication to treat the illness. The defendants opposed appointment of

counsel. Both Carter and the defendants also filed motions to exclude certain

evidence and trial briefs.

      The district court denied the motion for appointment of counsel at a pretrial

hearing on October 14, 2016. The court asked Carter if he “want[ed] to speak to that

motion.” Carter said no, and the court then denied the motion without explanation.

      A jury trial was held from October 24–26, 2016. Carter testified and called

two witnesses in support of his version of events. Witnesses for the defense included

Allen, Anderson, Barber, and Westlake.        Carter cross-examined each of the

witnesses, challenging specifically how a contraband cell phone could have been in

his possession when he had just been transferred to segregation.




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      The district court instructed the jury on the elements of First Amendment

retaliation, based on instructions submitted by the defendants. The court asked the

jury first to find whether Carter engaged in constitutionally protected speech when

he filed the grievance against Anderson on April 1, 2014. The six-person jury

unanimously answered “No” to this question. So, as the verdict form instructed, the

jury returned a verdict against Carter without addressing whether the defendants

engaged in acts of retaliation or considering damages. The district court entered

judgment on the verdict.

      Carter then filed a motion for new trial based on the failure to appoint counsel.

He argued that the lack of counsel prejudiced him at trial for several reasons: (a) he

was mentally ill; (b) he had not graduated from high school or obtained his GED;

(c) he did not have any legal experience; (d) the jury trial “turned largely [on] the

credibility of Defendants and Defense witnesses,” and (e) he needed someone to

help him conduct “meaningful cross examination.”

      After the defendants responded in opposition, the district court denied the

motion for new trial. The court explained its reasons as follows:

      The record belies Plaintiff’s argument. At trial, Plaintiff appeared to be
      alert, focused, and able to comprehend the proceedings. Plaintiff
      testified on his own behalf, called several witnesses, and conducted
      direct and cross-examination. Although the trial did involve credibility
      issues, plaintiff effectively questioned witnesses and identified possible
      inconsistencies between their testimony and other evidence. Further,
      Plaintiff gave a closing argument to the jury and got the vast majority
      of his documents into evidence. Plaintiff was articulate in his
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       testimony, questioning, and argument. The fact that the jury ultimately
       credited Defendants’ version of events does not suggest that Plaintiff’s
       performance was so deficient as to warrant the appointment of counsel
       and a retrial.

       Carter timely appealed the judgment and the denial of his motion for new trial.

We granted him leave to appeal in forma pauperis and appointed appellate counsel.

Appointed counsel then filed a brief presenting the three issues set out above,

relating to the jury instructions, appointment of counsel, and the availability of

punitive damages.1 We take each issue in turn.

                                             III.

       Ordinarily, we review the “legal correctness” of jury instructions de novo but

review the “phrasing of the instructions for abuse of discretion.” United States v.

Focia, 869 F.3d 1269, 1280 (11th Cir. 2017), cert. denied, (U.S. Jan. 7, 2019) (No.

18-6817). To determine whether the court abused its discretion, “we examine the

challenged instructions as part of the entire charge, in light of the allegations of the

complaint, the evidence presented, and the arguments of counsel, to determine

whether the jury was misled and whether the jury understood the issues.” Simmons

v. Bradshaw, 879 F.3d 1157, 1162 (11th Cir. 2018) (quotation marks omitted). Jury




       1
          We are grateful to Anne Baroody, court-appointed counsel, for ably representing Carter
in this appeal.

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instructions challenged for the first time on appeal are reviewed for plain error.

United States v. Felts, 579 F.3d 1341, 1343 (11th Cir. 2009).

      To prevail on a claim of First Amendment retaliation, “the inmate must

establish these elements: (1) his speech was constitutionally protected; (2) the

inmate suffered adverse action such that the administrator’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 and the

protected speech.” Smith v. Mosley, 532 F.3d 1270, 1276 (11th Cir. 2008). Only

the first element is at issue here.

      “It is an established principle of constitutional law that an inmate is considered

to be exercising his First Amendment right of freedom of speech when he complains

to the prison’s administrators about the conditions of his confinement.” Id. at 1276.

But “an inmate’s First Amendment right to free speech is not protected if affording

protection would be inconsistent with the inmate’s status as a prisoner or with the

legitimate penological objectives of the corrections system.” Id. at 1277. Therefore,

“if a prisoner violates a legitimate prison regulation, he is not engaged in ‘protected

conduct,’ and cannot proceed beyond step one.” Id. (quotation marks omitted). In

Smith, for example, we held that a prisoner’s “false and insubordinate remarks” in a

letter to an assistant warden, which were found to have violated two prison rules,

“failed to establish the first element of a retaliation claim.” Id.


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       The instruction in this case, based on Smith, explained that prisoners retain

the right to engage in free speech, including filing certain grievances, “so long as the

speech does not violate legitimate prison rules.” It elaborated that

       prison inmates are engaged in protected speech when they legitimately
       complain to prison administrators about the conditions of their
       confinement, including filing prison grievances. However, prison
       inmates are not engaged in protected speech when they make false
       statements, insubordinate remarks, or statements that violate reasonable
       prison rules.

              If you find that Plaintiff’s grievance falsely alleged that
       Defendant Anderson touched him in an inappropriate sexual manner,
       you must find that Plaintiff’s filing of the grievance was not
       constitutionally protected speech. However, if you find that Plaintiff
       had a good faith basis for filing his grievance, you may find that he was
       engaged in protected speech.

       Carter argues that it was wrong to give this instruction for three reasons. First,

he says that the issue of protected speech should not have been submitted to the jury

at all because it is an issue of law. Second, he asserts that the defendants effectively

waived the issue because they conceded that the grievance was protected speech in

their summary-judgment motion. Third, he maintains that the instruction misstated

the standard for protected speech. These arguments were raised for the first time on

appeal, so we normally would review for plain error only. Whether the issues are

forfeited or preserved, however, Carter is not entitled to relief. 2



       2
        Because Carter cites the alleged instruction errors as reasons why appointment of counsel
was necessary, we consider the issues without the more restrictive lens of plain-error review.

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      First, the district court properly submitted the issue of protected speech to the

jury. Carter is correct that it is a question of law whether, given a set of facts, a

person has engaged in constitutionally protected speech. Alves v. Bd. of Regents,

804 F.3d 1149, 1159 (11th Cir. 2015). But where the underlying facts relevant to

that legal determination are disputed, the matter is properly submitted to a jury to

resolve those disputed facts. Cf. Simmons, 879 F.3d at 1164 (“Though entitlement

to qualified immunity presents a question of law, resolution of this question can

sometimes turn on issues of fact.”).

      The jury was not asked to resolve a question of law. In the instruction, the

court explained that the legal question of whether the grievance was constitutionally

protected essentially turned on the factual question of whether Carter had a good-

faith basis for filing the grievance against Anderson. That dispute came down to

issues of credibility and Carter’s state of mind, which are matters for the jury. Lowe

v. Pate Stevedoring Co., 558 F.2d 769, 772 (5th Cir. 1977) (“It is the function of the

jury to weigh conflicting evidence and inferences, and determine the credibility of

the witnesses.”); see Prather v. Prather, 650 F.2d 88, 90 (5th Cir. July 1981) (“When

state of mind is a relevant issue, it is for the jury to determine what the state of mind




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is.”).3 It was, therefore, proper to ask a jury to resolve that dispute—assuming, of

course, that the instruction accurately stated the law, which we address below.

       Second, the defendants were not barred from arguing at trial that the grievance

was not constitutionally protected. Although the defendants, at summary judgment,

did “not dispute that Plaintiff’s filing of a grievance against Officer Anderson was a

constitutionally protected act,” they later made clear in their trial brief that they

intended to contest that issue at trial. It appears that Carter received a copy of this

brief at the pretrial hearing. Carter cites no authority holding that the defendants

could not raise at trial an issue they did not dispute at summary judgment but

included in their pretrial brief.

       Finally, the jury was not misled as to the legal standard for protected speech.

Carter contends that it was improper to ask the jury to determine the truth or falsity

of the grievance because, in his view, our decision in Smith held that prison

grievances are constitutionally protected unless an inmate is found to have violated

prison rules that are “reasonably related to legitimate penological interests.” Carter

reads Smith too narrowly.

       True, Smith held that the speech at issue in that case was not protected because

it violated “valid limitations on inmate speech.” Smith, 532 F.3d at 1277. But it also



       3
        This Court adopted as binding precedent all Fifth Circuit decisions prior to October 1,
1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).
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broadly stated that “an inmate’s First Amendment right to free speech is not

protected if affording protection would be inconsistent with the inmate’s status as a

prisoner or with the legitimate penological objectives of the corrections system.” Id.

      We apply this same standard whether we are dealing with an action or a

regulation. See id.; Jackson v. Cain, 864 F.2d 1235, 1248 (5th Cir. 1989). And here,

affording protection to a prisoner’s false allegation of sexual assault against a prison

officer for conducting a standard patdown search would be inconsistent with “the

legitimate penological objectives of the corrections system.” Smith, 532 F.3d at

1277; see Herron v. Harrison, 203 F.3d 410, 415 (6th Cir. 2000) (frivolous

grievances are not constitutionally protected); Bridges v. Gilbert, 557 F.3d 541, 551

(7th Cir. 2009) (“Prisons have an interest in keeping the inmates as safe and secure

as possible while imprisoned, and truthful speech that describes possible abuses can

actually be quite consistent with that objective.” (emphasis added)); cf. Bill

Johnson’s Rests., Inc. v. N.L.R.B., 461 U.S. 731, 743 (1983) (“[F]alse statements are

not immunized by the First Amendment right to freedom of speech.”).

      Although, as Carter argues, the First Amendment requires protection of some

falsehood to ensure that the freedom of speech receives “‘breathing space’ essential

to [its] fruitful exercise,” BE & K Constr. Co. v. N.L.R.B., 536 U.S. 516, 531 (2002)

(quoting Gertz v. Robert Welch, Inc., 418 U.S. 323, 342 (1974)), the court’s

instruction here provided such “breathing space” protection. The court told the jury


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that it could find that the grievance was constitutionally protected if Carter “had a

good faith basis for filing his grievance.” In contrasting “good faith basis” with

“falsely alleged,” the instruction properly focused the jury’s attention on Carter’s

motives in filing the grievance—to make a legitimate complaint or to harass or

retaliate—and not its truth or falsity as a purely factual matter. Cf. New York Times

Co. v. Sullivan, 376 U.S. 254, 280 (1964). Although the language of the charge is

not flawless, we conclude that it was legally accurate and that the jury understood

the issues and was not misled. See Simmons, 879 F.3d at 1162. Accordingly, Carter

has not established instructional error.

                                           IV.

      Carter next argues that the district court should have appointed counsel before

trial or at least explained its reasons for denying appointment of counsel. We review

the denial of motions for appointment of counsel for an abuse of discretion. Bass v.

Perrin, 170 F.3d 1312, 1319 (11th Cir. 1999). “We will find an abuse of discretion

only when a decision is in clear error, the district court applied an incorrect legal

standard or followed improper procedures, or when neither the district court’s

decision nor the record provide sufficient explanation to enable meaningful appellate

review.” Friends of the Everglades v. S. Fla. Water Mgmt. Dist., 678 F.3d 1199,

1201 (11th Cir. 2012).




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      “A plaintiff in a civil case has no constitutional right to counsel.” Bass, 170

F.3d at 1320. While a court may appoint counsel for an indigent plaintiff, “[t]he

district court has broad discretion in making this decision and should appoint counsel

only in exceptional circumstances,” id., (citations omitted), such as “where the facts

and legal issues are so novel or complex as to require the assistance of a trained

practitioner,” Poole v. Lambert, 819 F.2d 1025, 1028 (11th Cir. 1987).

      In determining whether exceptional circumstances warrant appointment of

counsel, the district court may consider various factors, including (1) the type and

complexity of the case, (2) whether the indigent is capable of adequately presenting

his case, (3) whether the indigent is in a position to adequately investigate the case,

and (4) whether the evidence will consist in large part of conflicting testimony so as

to require skill in the presentation of evidence and in cross-examination. Ulmer v.

Chancellor, 691 F.2d 209, 213 (5th Cir. 1982) (cited with approval in Fowler v.

Jones, 899 F.2d 1088, 1096 (11th Cir. 1990)). “The key is whether the pro se litigant

needs help in presenting the essential merits of his or her position to the court.” Kilgo

v. Ricks, 983 F.2d 189, 193 (11th Cir. 1993).

      Carter first argues that the district court abused its discretion because its

unexplained denial of his pretrial motion for appointment of counsel is insufficient

to permit meaningful appellate review. See Steele v. Shah, 87 F.3d 1266, 1271 (11th

Cir. 1996) (stating that courts must give “reasoned consideration” to a pro se


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litigant’s request for counsel and ordinarily must explain its ruling enough to show

that it has exercised its “informed discretion”).

       We, however, find that the record provides sufficient explanation to enable

meaningful review. See Friends of the Everglades, 678 F.3d at 1201. At the time

Carter renewed his motion for appointment of counsel, the district court was well

aware of Carter’s active involvement in the litigation, which demonstrated that he

was capable of adequately presenting his case. See Ulmer, 691 F.2d at 213. He had

filed coherent pleadings, obtained extensions of time, sought and obtained

discovery, timely responded to rulings by the district court, successfully defended

against a summary-judgment motion, filed a motion to exclude certain evidence at

trial, and filed a pretrial brief. Further, the court knew that Carter’s claims were

relatively straightforward and “involved incidents which took place in the prison,

most of which plaintiff witnessed himself.” Fowler, 899 F.2d at 1096. And the

defendants had filed a response in opposition with detailed arguments against

appointment of counsel. On this record, it was not an abuse of discretion for the

court to deny the motion for appointment of counsel without further explanation.

       Nor has Carter established exceptional circumstances warranting appointment

of counsel before trial. 4 Carter’s active and competent advocacy on his own behalf,


       4
          As Carter proposes, we limit our review to the facts known to the district court at the time
it ruled on the pretrial motion for appointment of counsel. See Branch v. Cole, 686 F.2d 264, 266
(5th Cir. 1982) (“Because the issue here is whether counsel should have been appointed prior to
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as summarized in the preceding paragraph, strongly indicated that he was able to

present adequately the “essential merits” of his case. See Kilgo, 983 F.2d at 193.

Plus, the issues were relatively straightforward and based on incidents personally

experienced by Carter. See Fowler, 899 F.2d at1096. Although other factors suggest

that appointment of counsel may have been appropriate, see Ulmer, 691 F.2d at 213,

“the abuse of discretion standard allows a range of choice for the district court, so

long as that choice here does not constitute a clear error of judgment,” Rasbury v.

I.R.S. (In re Rasbury), 24 F.3d 159, 168 (11th Cir. 1994) (quotation marks omitted).

Even if we might have decided the matter differently had it been our call to make,

we cannot say that the district court’s choice constitutes a clear error of judgment.

See id.

       Carter points to several aspects of the proceedings during which he would

have benefited from representation by counsel, including shaping jury instructions,

participating in jury selection, conducting discovery, and engaging in cross-

examination. However, while “[t]he plaintiff[], like any other litigant[], undoubtedly

would have been helped by the assistance of a lawyer, . . . [his] case is not so unusual

that the district court abused its discretion by refusing to appoint counsel.” Bass,

170 F.3d at 1320.




trial, based on the facts known then to the district court, we are precluded in answering that
question from using the hindsight gained by observing [the plaintiff’s] actual performance.”).
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      Finally, we note that Carter does not argue that the district court abused its

discretion by denying his motion for new trial based on the failure to appoint counsel.

We therefore deem this issue abandoned. See Sapuppo v. Allstate Floridian Ins. Co.,

739 F.3d 678, 680 (11th Cir. 2014) (issues not raised on appeal are abandoned).

                                          V.

      Carter’s argument that the district court should have permitted him to pursue

punitive damages is foreclosed by Circuit precedent. We have held that the Prison

Litigation Reform Act prevents a prisoner from seeking punitive damages in the

absence of a physical injury. Al-Amin v. Smith, 637 F.3d 1192, 1198–99 (11th Cir.

2011); see 42 U.S.C. § 1997e(e).         This prohibition applies “equally to all

constitutional claims,” including “those rarely accompanied by physical injury (e.g.,

First Amendment violations).” Al-Amin, 637 F.3d at 1197; see Harris v. Garner,

216 F.3d 970, 984–85 (11th Cir. 2000) (en banc). Accordingly, the district court

correctly concluded that punitive damages were not available to Carter, who did not

allege any physical injury.

                                         VI.

      For the reasons stated, we affirm the judgment against Carter.

      AFFIRMED.




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