          Case: 18-11140   Date Filed: 03/21/2019   Page: 1 of 11


                                                        [DO NOT PUBLISH]



           IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                            No. 18-11140
                        Non-Argument Calendar
                      ________________________

                D.C. Docket No. 7:16-cv-00172-HL-TQL



DARRYL PERNELL BUTLER,

                                             Plaintiff - Appellee,

                                 versus

NURSE AMBER NORMAN, et al.,

                                             Defendants,

HOPE DAVIS,
LT. RON HOWELL,

                                             Defendants - Appellants.

                      ________________________

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

                            (March 21, 2019)
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Before MARTIN, JILL PRYOR and NEWSOM, Circuit Judges.

PER CURIAM:

      Two corrections officers appeal a district court order denying their motion

for summary judgment on a pro se inmate’s claim that they retaliated against him

for exercising his First Amendment rights. On appeal, the defendant-officers argue

that the district court erred in denying their motion because they are entitled to

qualified immunity. After careful review, we agree with the defendants and

therefore reverse the denial of summary judgment and remand to the district court

with instructions to enter judgment in their favor.

           I.      FACTUAL AND PROCEDURAL BACKGROUND

      Darryl Pernell Butler is incarcerated at the Colquitt County Jail in Georgia.

Jail staff intercepted a piece of mail that Ernest Robinson, a former inmate, sent to

Butler containing a copy of a district court order in a lawsuit in which Robinson

was the plaintiff but to which Butler was not a party. At the time Robinson filed

his lawsuit, he was incarcerated at the Jail, but he was no longer incarcerated there

when he sent the court order to Butler. Butler alleged that then-Jail Administrator

Rod Howell told him, in the presence of then-detention officer Hope Davis,

“[S]ince you filed th[is] lawsuit you cannot use our law book[s] anymore,” Doc. 8-




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1 ¶ 14, 1 and that he would no longer be permitted to access the law library. At his

deposition, Butler testified that he had provided no legal assistance to Robinson:

         Q: . . . [Y]ou had done a little bit of work for Mr. Ernest Robinson on
         a case; is that correct?
         A: No, sir.
         Q: Okay. No legal work for him?
         A: No, sir.

Doc. 69 at 13.

         Butler, proceeding pro se, filed a 42 U.S.C. § 1983 lawsuit against Howell

and Davis for retaliating against him in violation of his First Amendment rights by

denying him access to legal materials because they believed that he had assisted

Robinson with a lawsuit. 2 Howell and Davis moved for summary judgment, which

the magistrate judge recommended denying because genuine disputes of material

fact remained as to the nature of Butler’s assistance to Robinson and whether

Howell and Davis acted with a retaliatory motive. The district court adopted the

magistrate judge’s recommendation and denied summary judgment to the

defendants. The sole issue on appeal is whether the district court erred in denying

summary judgment to Howell and Davis on Butler’s First Amendment retaliation

claim.



         1
             “Doc. #” refers to the numbered entry on the district court’s docket.
         2
          Butler also alleged other claims against additional defendants, none of which are before
us in this appeal. The district court dismissed without prejudice Butler’s claim that Howell and
Davis denied him access to the courts, a decision that Butler has not appealed.

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                        II.   STANDARD OF REVIEW

      “[W]e review de novo a district court’s denial of summary judgment

involving qualified immunity,” Griesel v. Hamlin, 963 F.2d 338, 341 (11th Cir.

1992), viewing the facts in the light most favorable to the nonmoving party,

Glasscox v. City of Argo, 903 F.3d 1207, 1212 (11th Cir. 2018). Although “[w]e

must draw all reasonable inferences in favor of the party opposing summary

judgment,” where we discern “no genuine dispute concerning any material fact and

the movant is entitled to judgment as a matter of law,” we must grant summary

judgment. Id. at 1212-13.

                               III.   DISCUSSION

      We reverse the denial of summary judgment to Howell and Davis. Our

careful review of the record reveals no genuine dispute as to the dispositive and

material fact that Butler provided no legal assistance to Robinson. Even assuming,

therefore, that Butler had a clearly established First Amendment right against

retaliation for providing legal assistance to current or former inmates, Howell and

Davis did not violate any such First Amendment right because he engaged in no

First Amendment-protected activity. Howell and Davis thus are entitled to

qualified immunity.

      A. We Have Jurisdiction to Hear This Interlocutory Appeal.




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      The magistrate judge recommended denying summary judgment to Howell

and Davis because “genuine issues of material fact remain regarding whether

Plaintiff provided legal assistance to [Robinson] in an effort to bring about social

change and protect constitutional rights” and because Howell and Davis “ha[d] not

provided any testimony or evidence to refute Plaintiff’s claim that they denied him

access to legal materials in retaliation for Plaintiff’s assisting [Robinson] with his

lawsuit.” Doc. 111 at 7; see also id. at 6-7 (citing Taylor v. McSwain, 335 F.

App’x 32, 34 (11th Cir. 2009) (unpublished) (“[W]here a prisoner undertakes

litigation on behalf of others in order to bring about social change and protect

constitutional rights, his actions may be considered protected political

expression.”)). In their objections to the magistrate judge’s report and

recommendation, the officers raised both factual and legal disputes: they asserted

that (1) they were entitled to summary judgment because Butler’s deposition

statement showed that he had provided no legal assistance to Robinson; and (2),

even if Butler had provided legal assistance to Robinson and even if this assistance

was activity protected by the First Amendment against retaliation, they were

entitled to qualified immunity because Butler’s right was not clearly established.

The district court, after conducting a de novo review of Howell and Davis’s

objections to the magistrate judge’s recommendation, adopted the magistrate

judge’s recommendation and denied summary judgment to the defendants.


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      The district court did not explicitly state that it was denying summary

judgment to the officers based on its determination that their alleged conduct

violated a clearly established right to be free from retaliation for providing legal

assistance to current or former inmates. Nevertheless, that determination was a

necessary condition to the district court’s denial of summary judgment: only if the

First Amendment provides a clearly established right against retaliation for

providing legal assistance to current or former inmates would it have been proper

for the district court to deny qualified immunity and summary judgment. See

Glasscox, 903 F.3d at 1213 (explaining that, to defeat a defense of qualified

immunity, a plaintiff must show that “(1) the defendant violated a constitutional

right, and (2) this right was clearly established at the time of the alleged violation”

(internal quotation marks omitted)). The district court’s denial of summary

judgment therefore was based both on its implicit determination of these legal

issues and its conclusion that genuine disputes of material fact remained.

      Ordinarily, we may review only final decisions of district courts, which

would preclude review of a denial of summary judgment. See 28 U.S.C. § 1291.

However, “a district court’s denial of a claim of qualified immunity, to the extent

that it turns on an issue of law, is an appealable ‘final decision’ within the meaning

of 28 U.S.C. § 1291 notwithstanding the absence of a final judgment.” Mitchell v.

Forsyth, 472 U.S. 511, 530 (1985). Stated another way, “interlocutory appellate


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jurisdiction over the legal issues involved in a qualified immunity question exists

even where the district court denied the summary judgment motion with the

unadorned statement that material issues of fact remain as to the defendant on the

federal question claim.” Cottrell v. Caldwell, 85 F.3d 1480, 1484-85 (11th Cir.

1996) (emphasis added) (alterations adopted) (internal quotation marks omitted)

(citing Behrens v. Pelletier, 516 U.S. 299, 304 (1996)). Because the district court’s

denial of summary judgment turns on disputed issues of law as well as disputed

issues of fact, this case comes within Mitchell’s exception to § 1291, and we may

exercise jurisdiction over this interlocutory appeal.3 Further, “in the course of

deciding th[is] interlocutory appeal,” we retain “authority to decide . . . those

evidentiary sufficiency issues that are part and parcel of the core qualified

immunity issues, i.e.[,] the legal issues.” Id. at 1486.

       B. The Defendants Have Not Waived Their Assertion of Qualified
          Immunity.

       Butler contends that the officers waived their argument that they are entitled

to qualified immunity by waiting until their reply brief on summary judgment to

raise it explicitly. Although ordinarily “arguments raised for the first time in a

       3
          Butler’s only argument in response to the Jurisdictional Question this Court issued to
the parties was that the defendants misstated the record regarding his involvement in the
Robinson case—specifically, Butler contends that the piece of mail the defendants intercepted
was unrelated to Robinson’s lawsuit. The veracity of Butler’s accusation that the defendants
mischaracterized the content of the mail does not undermine our jurisdiction over this appeal,
however. Our exercise of interlocutory appellate jurisdiction depends only on whether the
district court’s order contains reviewable issues of law, not of fact.

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reply brief are not properly before a reviewing court,” Herring v. Sec’y, Dep’t of

Corrs., 397 F.3d 1338, 1342 (11th Cir. 2005) (alteration adopted) (internal

quotation marks omitted), we conclude based on the circumstances here that the

officers did not waive the defense of qualified immunity.

       Even if the officers failed to timely assert qualified immunity in their

briefing before the magistrate judge—an issue we expressly do not decide—it was

within the district court’s discretion to consider an argument that was not before

the magistrate judge. See Stephens v. Tolbert, 471 F.3d 1173, 1176 (11th Cir.

2006). The officers raised the qualified immunity defense in their objections to the

magistrate judge’s recommendation, Butler had the opportunity to respond to their

qualified immunity argument, and the district court specifically stated that it had

reviewed the officers’ objections and found them unpersuasive. Because the

district court exercised its discretion to consider the defendants’ qualified

immunity defense, the issue is properly before us on appeal. 4

       C. The Defendants Are Entitled to Qualified Immunity on Butler’s
          Claim That They Denied Him Law Library Access in Retaliation for
          His Having Provided Legal Assistance to Robinson.

       4
         In their response to our Jurisdictional Question to the parties, the officers assert that
Butler was able to file a surreply and that therefore the primary reason for why reviewing courts
do not consider claims and defenses raised for the first time in a reply brief—that the opponent is
deprived of an adequate opportunity to respond—does not apply here. See Knighten v. Comm’r,
702 F.2d 59, 60 n.1 (5th Cir. 1983) (“It is impermissible to mention an issue for the first time in a
reply brief, because the appellee then has no opportunity to respond.”). The officers’ assertion is
misleading and inappropriate because, as they are well aware, they moved below to strike
Butler’s surreply, and the magistrate judge granted their motion.

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       The magistrate judge recommended denying summary judgment to the

officers on the ground that genuine disputes of material fact remained regarding

whether Butler provided legal assistance to Robinson for the purpose of promoting

social change and protecting constitutional rights and whether the defendants acted

with a retaliatory motive. The district court adopted the magistrate judge’s

recommendation and denied summary judgment.

       Upon a de novo review of the record, however, we conclude that no genuine

dispute exists as to the dispositive and material fact of whether Butler provided

legal assistance to Robinson. See Cottrell, 85 F.3d at 1486 (explaining that a

reviewing court may reach “those evidentiary sufficiency issues that are part and

parcel of the core qualified immunity issues”). At his deposition, Butler testified

that he provided no legal assistance to Robinson. 5 A necessary element of a First

Amendment retaliation claim is that the plaintiff’s “speech or act was

constitutionally protected.” Bennett v. Hendrix, 423 F.3d 1247, 1250 (11th Cir.

2005). Therefore, even assuming that Butler had a First Amendment right against


       5
          Butler makes conflicting statements in his brief on appeal, arguing in one place that he
“did not help Robinson file his lawsuit,” Appellee’s Br. at 16, and in another that “Mr. Robinson
could not have filed his lawsuit without Plaintiff answering request forms” submitted by
Robinson to obtain legal research materials, id. at 18. To the extent that Butler seeks to use his
brief to raise a genuine dispute as to whether he provided legal assistance to Robinson, we must
disregard the allegations in his brief that contradict the clear, undisputed record evidence.
Federal Rule of Civil Procedure 56 permits a party to support his arguments on summary
judgment using only “materials in the record” that was before the district court. Fed. R. Civ. P.
56(c)(1)(A), (3). The clear, undisputed record evidence shows that Butler provided no legal
assistance to Robinson.

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retaliation for providing legal assistance to a current or former inmate and that this

right was clearly established at the time the officers curtailed his access to legal

materials, Butler engaged in no speech or acts that came within this assumed First

Amendment sphere of protection. See Cottrell, 85 F.3d at 1489-92 (resolving

qualified immunity question by assuming, without deciding, that defendants’

alleged actions, if proven, would have violated a clearly established right but

determining that the record contained no facts from which a reasonable jury could

infer that a necessary factual predicate for a violation existed); Burrell v. Bd. of Tr.

of Ga. Military Coll., 970 F.2d 785, 792 (11th Cir. 1992) (“Assuming, without

deciding, that [two defendants] would have violated a clearly established right by

conspiring with [another defendant] to have [the plaintiff] fired for speaking out

against [Georgia Military College], the record does not contain inferable facts that

could support a finding that either [of the first two defendants] in any way

conspired with [the other defendant] to discharge [the plaintiff] for her public

criticism of GMC. Without a conspiracy, there obviously is no constitutional

violation. Without a constitutional violation, there can be no violation of a clearly

established right.”). Because Butler cannot show an essential element of his claim

that Howell and Davis violated his First Amendment right against retaliation, the

officers are entitled to qualified immunity.

                               IV.    CONCLUSION


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      We REVERSE the district court’s order denying defendants Howell and

Davis’s motion for summary judgment and remand to the district court with

instructions to enter judgment in their favor.

      REVERSED.




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