         Case: 14-14136   Date Filed: 06/15/2015   Page: 1 of 6


                                                      [DO NOT PUBLISH]



          IN THE UNITED STATES COURT OF APPEALS

                  FOR THE ELEVENTH CIRCUIT
                    ________________________

                          No. 14-14136
                      Non-Argument Calendar
                    ________________________

              D.C. Docket No. 4:12-cv-02538-LSC-TMP



ARTHUR BRENNAN MALLOY,

                                                         Plaintiff-Appellant,

                                versus

KENNETH N. PETERS,
Captain,
CARTER F. DAVENPORT,
Warden,
et al.,

                                                      Defendants-Appellees.

                    ________________________

             Appeal from the United States District Court
                for the Northern District of Alabama
                    ________________________

                           (June 15, 2015)
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Before HULL, ROSENBAUM, and ANDERSON, Circuit Judges.

PER CURIAM:

      Arthur Brennan Malloy, an Alabama state prisoner appearing pro se, appeals

from the district court’s grant of summary judgment in favor of the defendants in

his 42 U.S.C. § 1983 suit alleging that the defendants conspired to retaliate against

him in violation of his First Amendment rights by charging him with a violation of

prison rules after he filed a complaint against one of the defendants. On appeal,

Malloy argues that the district court abused its discretion in striking his discovery

requests because they were timely served upon the defendants pursuant to the

Federal Rules of Civil Procedure (“FRCP”), and the discovery order did not

supersede the FRCP. In addition, Malloy argues that the district court erred in

denying his motion for summary judgment and granting the defendants’ motion for

summary judgment.

                                          I.

      A district court’s discovery decisions are reviewed for 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 33 states that “[u]nless otherwise

stipulated or ordered by the court, a party may serve on any other party no more

than 25 written interrogatories . . . .” Fed.R.Civ.P. 33(a)(1). Federal Rule of Civil

Procedure 36 states that “[a] party may serve on any other party a written request


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to admit . . . the truth of any matters within the scope of Rule 26(b)(1) . . . .”

Fed.R.Civ.P. 36(a)(1). If a party receiving a request to admit does not provide a

written answer or objection within 30 days of being served, the matter is admitted.

Fed. R. Civ. P. 36(a)(3). The district court may regulate practice “in any manner

consistent with federal law, [the FRCP], and the district court’s local rules.”

Fed.R.Civ.P. 83(b).

      Here, the district court did not abuse its discretion in striking Malloy’s

discovery requests, because Malloy failed to comply with the discovery order,

which did not conflict with the FRCP. Malloy did not file any request for leave to

conduct additional discovery as required by the discovery order. He also submitted

his discovery requests prior to the submission of the defendants’ special reports,

which was contrary to the discovery order. The discovery order was consistent

with the FRCP because it did not prohibit outright discovery requests, but rather

required the parties to receive authorization from the district court before

conducting additional discovery. See Fed.R.Civ.P. 83(b). As a result, the district

court did not abuse its discretion in striking Malloy’s discovery requests. See R&F

Properties, 433 F.3d at 1355.

                                           II.

      We review a district court’s grant of summary judgment de novo. Weeks v.

Harden Mfg. Corp., 291 F.3d 1307, 1311 (11th Cir. 2002). Summary judgment is


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appropriate when the evidence, viewed in the light most favorable to the

nonmoving party, presents no genuine issue of material fact and compels judgment

as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317,

322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). “A mere scintilla of

evidence in support of the nonmoving party will not suffice to overcome a motion

for summary judgment.” Young v. City of Palm Bay, 358 F.3d 859, 860 (11th Cir.

2004).

      Section 1983 creates a private cause of action for deprivations of federal

rights by persons acting under color of state law. 42 U.S.C. § 1983. The First

Amendment forbids prison officials from retaliating against prisoners for

exercising the right of free speech. O’Bryant v. Finch, 637 F.3d 1207, 1212 (11th

Cir. 2011). An inmate cannot state a claim of retaliation for a disciplinary charge

involving a prison rule infraction when the inmate was found guilty of the actual

behavior underlying that charge after being afforded adequate due process. Id. at

1215. Adequate due process requires that the inmate have (1) advance written

notice, (2) an opportunity to present witnesses and evidence at his disciplinary

hearing, and (3) a written statement from the factfinder outlining the evidence

relied upon and the reasons for the disciplinary action. Id. at 1213-14. Due process

requires some evidence in the record that supports the decision of the disciplinary

board. Id. at 1214.


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      To sustain a conspiracy action under Section 1983, the plaintiff must show

that the parties “reached an understanding” to deny the plaintiff his or her rights.

Grider v. City of Auburn, 618 F.3d 1240, 1260 (11th Cir. 2010) (quotation

omitted). It is not enough to simply aver in the complaint that a conspiracy

existed. Fullman v. Graddick, 739 F.2d 553, 557 (11th Cir. 1984).

      Here, the district court did not err in granting the defendants’ motion for

summary judgment and denying Malloy’s motion. First, Malloy cannot state a

retaliation claim, because he was found guilty of the behavior underlying both

disciplinary charges and was afforded adequate due process at the disciplinary

hearing. See O’Bryant, 637 F.3d at 1215. Malloy received advance written notice,

an opportunity to present evidence and witnesses, and a written statement outlining

the evidence upon which the factfinder relied and the reasons for his decision.

Furthermore, there exists some evidence in the record supporting the decision of

the disciplinary board to find Malloy guilty of violating prison rules. See O’Bryant,

637 F.3d at 1214.

      Second, Malloy fails to allege any facts to show that the defendants came to

an agreement to violate his constitutional rights and, therefore, conspired to

retaliate against him. See Grider, 618 F.3d at 1260. As described previously,

Malloy failed to show that the disciplinary hearing and resulting determinations of

guilt violated his constitutional rights. He also only provided a “mere scintilla” of


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evidence both in support of his motion for summary judgment and in opposition to

the defendants’ motion for summary judgment. See Young, 358 F.3d at 860. His

evidence consists solely of his assertions that the conspiracy between the

defendants existed. See Fullman, 739 F.2d at 557. As a result, the district court did

not err in granting the defendants’ motion for summary judgment and denying

Malloy’s motion for summary judgment. See Weeks, 291 F.3d at 1311.

Accordingly, we affirm.

      AFFIRMED.




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