                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________                 FILED
                                                       U.S. COURT OF APPEALS
                               No. 07-14884              ELEVENTH CIRCUIT
                                                           November 13, 2008
                           Non-Argument Calendar
                                                          THOMAS K. KAHN
                         ________________________
                                                               CLERK

                   D. C. Docket No. 04-00122-CV-BAE

DEXTER SHAW,


                                                           Plaintiff-Appellant,

                                  versus

ABBIGAIL COWART,
ERIC HEMPHILL, et al.,

                                                                  Defendants,

WARDEN HUGH SMITH,
TRELLIS DODSON,


                                                        Defendants-Appellees.


                         ________________________

                Appeal from the United States District Court
                   for the Southern District of Georgia
                     _________________________
                            (November 13, 2008)
Before DUBINA, BLACK, and BARKETT, Circuit Judges.

PER CURIAM:

      Appellant Dexter Shaw (“Shaw”), proceeding pro se, appeals the district

court’s orders: (1) denying Shaw’s motion to appoint counsel; (2) denying Shaw’s

motions for a protective order; (3) denying Shaw’s motion for a stay of summary

judgment; (4) granting in part the defendants’ motion for summary judgment; (5)

denying Shaw’s requests to compel the production of documents and to issue

subpoenas to his desired witnesses; and (6) denying Shaw’s motions for a

continuance.

      Shaw filed a pro se complaint against Trellis Dodson, Hugh Smith, Abbigail

Cowart, and Fred Brown (collectively the “State”) under 42 U.S.C. § 1983. Shaw,

an inmate in Georgia State Prison, alleged that Dodson, a correctional officer at the

prison, violated his First and Eighth Amendment rights by intentionally and

maliciously closing him in his cell door and injuring his shoulder in retaliation for

Shaw writing grievances and other complaints about Dodson. Shaw alleged that

Dodson and Cowart, a former correctional officer at the prison, violated his First

Amendment right by writing false disciplinary reports against him in retaliation for

Shaw filing grievances against them and discussing “their inmate dealings.” Shaw

also alleged that Smith and Brown, the current and former wardens of the prison,



                                           2
respectively, knew that Dodson was a threat to Shaw’s safety but failed to protect

him, in violation of the Eighth Amendment.

                                           I.

      On appeal, Shaw first argues that the district court abused its discretion in

denying his motion for appointment of counsel. Shaw contends that, due to his

incarceration, he was unable to investigate the facts supporting his claims and

interview material witnesses. Shaw also argues that he is entitled to appointment

of counsel on appeal.

      We review the denial of a motion for appointment of counsel in a civil

proceeding for abuse of discretion. Bass v. Perrin, 170 F.3d 1312, 1320 (11th Cir.

1999). The district court may appoint counsel for an indigent plaintiff under 28

U.S.C. § 1915(e)(1). Id. However, “[t]he district court has broad discretion in

making this decision . . . and should appoint counsel only in exceptional

circumstances . . . .” Id. (citations omitted). “The key is whether the pro se litigant

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

Where the facts and issues are simple, he or she usually will not need such help.”

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

construe the pleadings of a pro se petitioner. Alba v. Montford, 517 F.3d 1249,

1252 (11th Cir. 2008), petition for cert. filed, ___ U.S.L.W. ___ (U.S. Sep. 19,



                                           3
2008) (No. 08-6426).

      Here, the facts and legal claims are not complicated, and a review of Shaw’s

pleadings and motions demonstrates that he had an adequate understanding of the

issues in this case. Therefore, we conclude that this case “is not so unusual that the

district court abused its discretion by refusing to appoint counsel.” Bass, 170 F.3d

at 1320. For the same reasons, we also conclude that Shaw is not entitled to

counsel on appeal.

                                           II.

      Next, Shaw argues that the district court abused its discretion in denying his

motions for a protective order. Shaw contends that a protective order was

necessary because the State refused to comply with either his discovery requests or

his attempts to secure affidavits from material witnesses.

      We review the district court’s rulings on discovery matters for an abuse of

discretion. United States v. R&F Properties of Lake County, Inc., 433 F.3d 1349,

1355 (11th Cir. 2005). Federal Rule of Civil Procedure 26 provides that “[a] party

or any person from whom discovery is sought may move for a protective order.”

Fed.R.Civ.P. 26(c) (emphasis added). Moreover, a district court may grant

injunctive relief as an extraordinary and drastic remedy if the movant clearly

establishes that “(1) it has a substantial likelihood of success on the merits, (2) the



                                            4
movant will suffer irreparable injury unless the injunction is issued, (3) the

threatened injury to the movant outweighs the possible injury that the injunction

may cause the opposing party, and (4) if issued, the injunction would not disserve

the public interest.” Horton v. City of St. Augustine, Fla., 272 F.3d 1318, 1326

(11th Cir. 2001) (citing Siegel v. Lepore, 234 F.3d 1163, 1176 (11th Cir. 2000)).

      Based on our review of the record, we conclude that the district court

committed no error in denying Shaw’s motions for a protective order. Rule 26(c)

by its terms applies only to motions for protective orders by a party or person

“from whom discovery is sought.” Fed.R.Civ.P. 26(c) (emphasis added).

Moreover, to the extent that Shaw sought injunctive relief, he has not shown that

he had a likelihood of irreparable injury sufficient to invoke this “extraordinary

and drastic remedy.” Horton, 272 F.3d at 1326 (quotations omitted). Accordingly,

we conclude that the district court did not err in denying these motions.

                                          III.

      Next, Shaw argues that the district court abused its discretion in denying his

motion for a stay of summary judgment under Federal Rule of Civil Procedure

56(f). Shaw contends that the State had improperly denied his numerous requests

for information relating to material witnesses for purposes of obtaining affidavits,

and that the State had also denied his requests for the production of the original



                                           5
prison log book for the date of his claimed injury. Moreover, he argues that the

State had in bad faith limited his ability to view and copy documents that he had

requested by placing him in a small, poorly lit cell with a box of photocopied

documents.

      We review the denial of a motion for a stay of summary judgment under

Rule 56(f) for an abuse of discretion. Burks v. American Cast Iron Pipe Co., 212

F.3d 1333, 1336 (11th Cir. 2000). Rule 56 provides that:

      If a party opposing the motion [for summary judgment] shows by
      affidavit that, for specified reasons, it cannot present facts essential to
      justify its opposition, the court may:

      (1) deny the motion;

      (2) order a continuance to enable affidavits to be obtained, depositions
      to be taken, or other discovery to be undertaken; or

      (3) issue any other just order.

Fed.R.Civ.P. 56(f). We have instructed that “[a] Rule 56(f) motion must be

supported by an affidavit which sets forth with particularity the facts the moving

party expects to discover and how those facts would create a genuine issue of

material fact precluding summary judgment.” Harbert Intern., Inc. v. James, 157

F.3d 1271, 1280 (11th Cir. 1998).

      The record demonstrates that Shaw had a sufficient amount of time to obtain

evidence essential to justify his claims. Therefore, we conclude that the district

                                           6
court did not abuse its discretion in denying Shaw’s motion for a stay of summary

judgment.

                                                IV.

       Next, Shaw argues that the court erred in granting the State’s motion for

summary judgment as to his due process and retaliation claims against Cowart and

Dodson.1 Shaw asserts that there is a genuine issue of material fact as to whether

his due process rights were violated by three disciplinary reports that were written

by either Dodson or Cowart because he was not provided with notice of the

potential penalties prior to the charged misconduct, he was denied service of the

initial disciplinary reports, he was denied the opportunity to call material witnesses

at his disciplinary hearings, and the State instead presented false statements from

Shaw’s witnesses. In regard to Shaw’s retaliation claims, he argues that there is a

genuine issue of material fact as to whether Dodson and Cowart created false

disciplinary reports, and whether Dodson closed Shaw in his cell door, in

retaliation for Shaw filing grievances against them and speaking on their improper

dealings with inmates.



       1
         Shaw raises no argument on appeal in regard to the grant of summary judgment on his
failure to protect claim against Brown. Accordingly, he has abandoned this claim. See Horsley v.
Feldt, 304 F.3d 1125, 1131 n.1 (11th Cir. 2002) (concluding that pro se plaintiff waived claims that
he did not raise on appeal).


                                                 7
      We review a district court order granting summary judgment de novo,

viewing all of the facts in the record in the light most favorable to the non-moving

party. Brooks v. County Comm’n of Jefferson County, Ala., 446 F.3d 1160, 1161-

62 (11th Cir. 2006). “Summary judgment is appropriate when ‘there is no genuine

issue as to any material fact and . . . the moving party is entitled to a judgment as a

matter of law.’” Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1085 (11th Cir.

2004) (quoting Fed.R.Civ.P. 56(c)). “A genuine factual dispute exists if the jury

could return a verdict for the non-moving party.” Id. (quoting Damon v. Fleming

Supermarkets of Fla., Inc., 196 F.3d 1354, 1358 (11th Cir. 1999)). “A supporting

or opposing affidavit must be made on personal knowledge, set out facts that

would be admissible in evidence, and show that the affiant is competent to testify

on the matters stated.” Fed.R.Civ.P. 56(e)(1). Facts alleged by the plaintiff in a

sworn pleading are sufficient to defeat a motion for summary judgment, and it is

improper to grant summary judgment on the basis of credibility choices. Perry v.

Thompson, 786 F.2d 1093, 1095 (11th Cir. 1986).

      Where a prisoner has established the deprivation of a protected liberty

interest via prison disciplinary proceedings, the question becomes whether he was

afforded due process in connection with the deprivation of such interest. Bass, 170

F.3d at 1318. To that end, “[t]he minimum requirements of due process for



                                           8
prisoners facing disciplinary action . . . are (1) advance written notice of the

charges; (2) a written statement of the reasons for the disciplinary action taken; and

(3) the opportunity to call witnesses and present evidence, when consistent with

institutional safety and correctional goals.” Id.; see Wolff v. McDonnell, 418 U.S.

539, 563-566, 94 S. Ct. 2963, 2978-80, 41 L. Ed. 2d 935 (1974) (establishing due

process requirements for inmate disciplinary proceedings). In Wolff, the Supreme

Court provided that the inmate must receive notice of disciplinary charges at least

24 hours prior to the hearing. Id. at 564, 94 S. Ct. at 2979. The Court also

recognized the need for flexibility in allowing an inmate the opportunity “to call

witnesses and present documentary evidence in his defense when permitting him to

do so will not be unduly hazardous to institutional safety or correctional goals.”

Id. at 566, 94 S. Ct. at 2979. Accordingly, the Court concluded that “it would be

useful for [prison officials] to state [their] reason for refusing to call a witness,

whether it be for irrelevance, lack of necessity, or the hazards presented in

individual cases.” Id., 94 S. Ct. at 2980. Moreover, “the requirements of due

process are satisfied if some evidence supports the decision by the prison

disciplinary board . . . .” Superintendent, Mass. Corr’l Inst. v. Hill, 472 U.S. 445,

455, 105 S. Ct. 2768, 2774, 86 L.Ed.2d 356 (1985).

       “The First Amendment forbids prison officials from retaliating against



                                             9
prisoners for exercising the right of free speech.” Farrow v. West, 320 F.3d 1235,

1248 (11th Cir. 2003). “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.” Smith v. Mosley, 532 F.3d 1270, 1276 (11th Cir. 2008). To

prevail on an action alleging that prison officials retaliated against an inmate for

making such complaints, the inmate must establish the following: “(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.” Id.

      Here, the State demonstrated that it complied with the due process

requirements for inmate disciplinary proceedings, and Shaw failed to respond with

evidence creating a genuine issue of material fact. Moreover, the State also

demonstrated that Cowart wrote disciplinary report 517-03-4298 in response to

statements by Shaw that do not constitute protected speech by a prison inmate, and

Shaw failed to respond with evidence showing that Cowart wrote the report in

retaliation for his otherwise engaging in protected conduct. Accordingly, we

affirm the grant of summary judgment as to Shaw’s due process claims against



                                           10
Dodson and Cowart and his retaliation claim against Cowart.

      However, we conclude that Shaw presented evidence creating a genuine

issue of material fact as to whether Dodson wrote disciplinary report 517-03-4251

and closed Shaw in his cell door in retaliation for Shaw writing a grievance and

letters to prison officials about her. As a result, we vacate the district court’s grant

of summary judgment against Shaw as to his retaliation claim against Dodson and

remand for further proceedings.

                                           V.

      Next. Shaw argues that the district court abused its discretion in denying

both his request for an in camera inspection of the prison log book for the date of

his injury, and his motion for a subpoena duces tecum to compel the State to

produce the log book at trial. Because prison officials are required to file a report

on all inmate incidents, Shaw contends, the log book would have supported his

excessive force claim by showing that Dodson closed Shaw in his cell door and

that he was injured as a result. Moreover, Shaw argues that the court erred in

denying his request for the court to interview his witnesses, his petitions for writs

of habeas corpus ad testificandum regarding inmate witnesses, his request for the

court to call his witnesses as the court’s own, and in failing to inform Shaw as to

the cost of issuing subpoenas for his desired witnesses in time for trial.



                                           11
      We review the district court’s rulings on pretrial discovery matters for an

abuse of discretion. Klay v. All Defendants, 425 F.3d 977, 982 (11th Cir. 2005).

“[W]e will not overturn discovery rulings unless it is shown that the District

Court’s ruling resulted in substantial harm to the appellant’s case.” Iraola & CIA,

S.A. v. Kimberly-Clark Corp., 325 F.3d 1274, 1286 (11th Cir. 2003) (quotations

omitted).

      “The discretionary grant of the writ of habeas corpus ad testificandum is

predicated on several factors, including, whether the prisoner’s presence will

substantially further the resolution of the case, the security risks presented by the

prisoner’s presence, and the expense of the prisoner’s transportation and

safekeeping.” Pollard v. White, 738 F.2d 1124, 1125 (11th Cir. 1984) (quotations

and internal markings omitted). In a criminal case, we have observed that the fact

that “inmate witnesses are not entitled to receive the statutorily prescribed witness

fees and travel expenses . . . does not necessarily relieve a criminal defendant from

paying the cost of securing the attendance of inmate-witnesses, which could in

some cases be enormous, given that inmates will presumably be accompanied by

guards when travelling to and from the trial.” United States v. Garmany, 762 F.2d

929, 933 n.2 (11th Cir. 1985) (citation omitted).

      We conclude from the record that any error in the court’s refusal either to



                                           12
conduct an in camera inspection of the log book or issue a subpoena duces tecum

for its production at trial did not result in substantial harm to Shaw’s case because

he was able to examine witnesses at trial concerning the substance of prison

records relating to his alleged injury. Moreover, the court did not abuse its

discretion in concluding that Shaw must still pay witness fees with respect to

inmate witnesses. In addition, the State voluntarily produced three of Shaw’s five

requested witnesses that were relevant to his claims that went to trial. Therefore,

and because Shaw was also able to present his case through his own testimony and

by examining defendants Dodson and Smith, we conclude that the district court’s

refusal to issue subpoenas to all of Shaw’s desired witnesses also did not result in

substantial harm to his case. As a result, the district court did not abuse its

discretion in denying these motions.

                                          VI.

      Finally, Shaw argues that the district court abused its discretion in denying

his motions to continue his trial so that he could secure the presence of material

witnesses and ensure that the State would produce the prison log book. Shaw

argues that he had filed the necessary motions to secure the presence of material

witnesses at trial, but the court had improperly denied each one. Moreover, Shaw

contends that the court improperly denied his requests for either an in camera



                                           13
review of the log book or a subpoena duces tecum ordering the State to produce it

at trial.

        We review the denial of a motion for a continuance for abuse of discretion,

and we will not overturn such decision unless it is arbitrary or unreasonable. Quiet

Technology DC-8, Inc. v. Hurel-Dubois UK Ltd., 326 F.3d 1333, 1339, 1350-51

(11th Cir. 2003). We have adopted a four-part test for reviewing the denial of a

motion for a continuance:

        First, we consider the extent of appellant’s diligence in his efforts to
        ready his defense prior to the date set for hearing. Second, we
        consider how likely it is that the need for a continuance could have
        been met if the continuance had been granted. Third, we consider the
        extent to which granting the continuance would have inconvenienced
        the court and the opposing party, including its witnesses. Finally, we
        consider the extent to which the appellant might have suffered harm as
        a result of the district court’s denial.

Hashwani v. Barbar, 822 F.2d 1038, 1040 (11th Cir. 1987) (alterations omitted).

        The record demonstrates that Shaw’s requests for a continuance were based

primarily upon his aforementioned attempts to secure the presence of his desired

witnesses at trial and compel the State to produce the prison log book. Although

the record reflects that Shaw was quite diligent in his efforts to prepare his case,

the foregoing analysis illustrates that Shaw ultimately suffered no harm sufficient

to remand this case for a new trial due to his inability to present the log book at

trial or subpoena all of his desired witnesses. Therefore, we conclude that the

                                           14
district court did not abuse its broad discretion in denying Shaw’s requests for a

continuance.

       Shaw also argues that the court erred in failing to address several motions

that he filed just before trial. However, the trial transcript reflects that the district

court allowed Shaw to present argument as to any unresolved issues at the start of

his trial. Furthermore, Shaw argues that the court demonstrated partiality and

impropriety throughout his trial. However, he merely reiterates his dissatisfaction

with the denials of his motions that he raises on appeal. As a result, we deny these

claims. Finally, to the extent that Shaw argues that the denials of the motions at

issue deprived him of due process and a fair trial, in light of the fact that none of

the district court orders at issue were improper, and because Shaw raises no

challenge to the jury verdict, we conclude that Shaw was not deprived of due

process or a fair trial.2

       In sum, we affirm the district court’s denial of the various pretrial motions

discussed herein, and the grant of summary judgment as to Shaw’s failure to

protect claim against Brown, Shaw’s due process claims against Cowart and

Dodson, and Shaw’s retaliation claim against Cowart. However, because Shaw

demonstrated a genuine issue of material fact as to his retaliation claim against


       2
        Because Shaw has not argued that the jury verdict was incorrect, he has abandoned this
issue. Horsley, 304 F.3d at 1131 n.1.

                                             15
Dodson, we vacate and remand this claim for further proceedings consistent with

this opinion.

      AFFIRMED IN PART, VACATED AND REMANDED IN PART.




                                        16
