                                                          [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS
                                                                  FILED
                        FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                          ________________________ ELEVENTH CIRCUIT
                                                            JANUARY 9, 2007
                                  No. 06-11454             THOMAS K. KAHN
                              Non-Argument Calendar             CLERK
                            ________________________

                     D. C. Docket No. 03-01042-CV-J-25-MMH

EDDIE LAREECE PITTMAN,


                                                Plaintiff-Appellant,

                                     versus

OFC. TUCKER,
NFRC West, et al.,

                                                Defendants,

TERRY SVIR,
Capt. of NFRC West,
GINGER PARKER,
Ofc. of NFRC West,
DOUGLAS BARNETTE,
Sgt. (retired),
MELVIN EBERLE,
Ofc. of NFRC Main,
ARCHIE CLEMONS,
Lt. of NFRC Main, et al.,


                                                Defendants-Appellees.
                           ________________________

                    Appeal from the United States District Court
                        for the Middle District of Florida
                         _________________________

                                 (January 9, 2007)

Before DUBINA, WILSON and PRYOR, Circuit Judges.

PER CURIAM:

      Appellant Eddie Lareece Pittman, a former Florida prisoner proceeding pro

se, appeals the district court’s entry of summary judgment in favor of four

defendant officers in this 42 U.S.C. § 1983 civil action. Pittman alleges that

officers of the North Florida Reception Center (“NFRC”) violated his First

Amendment rights. Pittman contends that his affidavits provide direct knowledge

of adverse actions taken against him for filing grievances. More specifically, he

argues that Captain Terry Svir and Lieutenant Archie Clemons used threats of

physical violence in order to deter him from filing grievances. Pittman also

contends that Lieutenant Clemons, Sergeant Kevin Graham, and Sergeant Johnny

Jerry threatened him with future disciplinary actions that caused him significant

distress. Lastly, Pittman contends that Captain Svir, Sergeant Graham, and

Lieutenant Clemons caused disciplinary actions to be taken against him in an effort

to deter him from filing grievances.



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      The officers argue that Pittman’s claims are barred under Heck v. Humphrey,

512 U.S. 477, 114 S. Ct. 2364 (1994). In Heck, the Supreme Court held:

       to recover damages for allegedly unconstitutional conviction or
      imprisonment, or for other harm caused by actions whose
      unlawfulness would render a conviction or sentence invalid, a
      [42 U.S.C.] § 1983 plaintiff must prove that the conviction or sentence
      has been reversed on direct appeal, expunged by executive order,
      declared invalid by a state tribunal authorized to make such
      determination, or called into question by a federal court’s issuance of
      a writ of habeas corpus.

512 U.S. at 486-87, 114 S. Ct. at 2372. If this type of action is brought prior to the

invalidation of the challenged conviction or sentence, it must be dismissed as

premature. Id. at 487, 114 S. Ct. at 2372. Thus, “the district court must consider

whether a judgment in favor of the plaintiff would necessarily imply the invalidity

of his conviction or sentence; if it would, the complaint must be dismissed unless

the plaintiff can demonstrate that the conviction or sentence has already been

invalidated.” Id.

      The Supreme Court has applied the Heck analysis to claims made by

prisoners challenging prisoner disciplinary actions. See Edwards v. Balisok,

520 U.S. 641, 643-49, 117 S. Ct. 1584, 1586-89 (1997). However, Heck is not

categorically applicable to all suits challenging prison disciplinary actions. See

Muhammad v. Close, 540 U.S. 749, 754, 124 S. Ct. 1303, 1306 (2004).




                                           3
        In Muhammad, a prisoner filed a § 1983 action against a prison official,

alleging that the official had charged him with threatening behavior and subjected

him to mandatory prehearing lockup in retaliation for prior lawsuits and grievance

proceedings the prisoner had filed against the prison official. Id. at 753, 124 S. Ct.

at 1305. The district court entered summary judgment in favor of the prison

official, holding that the prisoner failed to come forward with sufficient evidence

of retaliation. Id. The Sixth Circuit upheld the dismissal of the suit on different

grounds. The court concluded that the action was barred by Heck. Id. at 753, 124

S. Ct. at 1306. The Supreme Court reversed, holding that because the magistrate

judge expressly found no good-time credits were affected by the actions challenged

in the law suit, the prisoner’s § 1983 claims could not be “construed as seeking a

judgment at odds with his conviction or with the State’s calculation of time to be

served in accordance with the underlying sentence.” Id. at 754-55, 124 S. Ct. at

1306.

        Here, Pittman’s complaint does not seek to challenge the validity of his

underlying conviction, and it does not seek to affect the time he would serve

related to his conviction. Although Pittman does claim officers retaliated against

him by filing a false disciplinary report and placing him in confined management,

there is no indication that these disciplinary actions affected his sentence.

Moreover, the defendants do not assert that the disciplinary actions affected the
                                           4
length of Pittman’s sentence. Accordingly, we hold that Pittman’s claims are not

Heck-barred because there is no indication that a judgment in his favor would

necessarily imply the invalidity of his conviction or his sentence.

         We review a district court’s entry of summary judgment on a § 1983 claim

de novo. Patrick v. Floyd Med. Center, 201 F.3d 1313, 1315 (11th Cir. 2000).

Summary judgment is appropriate only if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with affidavits, show that there is

no genuine issue as to any material fact. Bennett v. Hendrix, 423 F.3d 1247, 1249-

50 (11th Cir. 2005), cert. denied, 127 S. Ct. 37 (2006). A fact is genuine if the

record, taken as a whole, could lead a trier of fact to find for the nonmoving party.

Tipton v. Bergrohr GMBH-Siegen, 965 F.2d 994, 998 (11th Cir. 1992). To raise a

genuine issue of material fact, allegations in affidavits must be based on personal

knowledge, and not based, even in part, “upon information and belief.” Pace v.

Capobianco, 283 F.3d 1275, 1278 (11th Cir. 2002). “All evidence and reasonable

factual inferences drawn therefrom are reviewed in the light most favorable to the

party opposing the motion.” Warren v. Crawford, 927 F.2d 559, 561-62 (11th Cir.

1991).

         “In order to prevail on a civil rights action under § 1983, a plaintiff must

show that he or she was deprived of a federal right by a person acting under color

of state law.” Griffin v. City of Opa-Locka, 261 F.3d 1295, 1303 (11th Cir. 2001).
                                             5
Section 1983 “requires proof of an affirmative causal connection between the

official’s acts or omissions and the alleged constitutional deprivation.” Zatler v.

Wainwright, 802 F.2d 397, 401 (11th Cir. 1986). We have held that

§ 1983 claimants must allege facts in support of their claims with some specificity.

Wilson v. Strong, 156 F.3d 1131, 1135 (11th Cir. 1998). A mere “scintilla” of

evidence that supports the nonmoving party’s position with respect to a motion for

summary judgment is not sufficient. Allen v. Tyson Foods, Inc., 121 F.3d 642,

646 (11th Cir. 1997).

      In Bennett, we adopted a three-part test for determining whether a plaintiff

has an actionable First Amendment retaliation claim. See Bennett, 423 F.3d at

1250-51. Under the test, a plaintiff must establish: (1) that his speech or act was

constitutionally protected; (2) that the defendant’s retaliatory conduct adversely

affected the protected speech; and (3) that there is a causal connection between the

retaliatory actions and the adverse effect on speech. Id. at 1250. We held that “[a]

plaintiff suffers adverse action if the defendant’s allegedly retaliatory conduct

would likely deter a person of ordinary firmness from the exercise of his First

Amendment rights.” Id. at 1254. Accordingly, we explained that a plaintiff need

not show that his own exercise of First Amendment rights have been chilled, but

instead a plaintiff can establish an injury if he can show that the retaliatory acts are

sufficiently adverse that a jury could find that the acts would chill a person of
                                           6
ordinary firmness from exercising his First Amendment rights. Id. at 1254-55. We

further held that a jury could find that the prolonged campaign of harassment

alleged by the plaintiffs in that case could have such a chilling effect. Id.

      Despite the district court’s findings, we conclude that if one makes all

inferences in favor of Pittman, Captain Svir’s statement could be interpreted as a

threat that prison officials, not other inmates, would do “something drastic” if

Pittman continued to file grievances. Under such a reading, prong one of Bennett

would be satisfied because of the discussion related to Pittman’s filing of a

grievance, which was a constitutionally protected activity. In addition, prong three

was satisfied because it is reasonable to discern that the threat was intended to

deter Pittman’s filing of a grievance.

      The remaining issue is not whether Svir carried out the threat, but whether

the alleged threat itself was sufficient to deter a person of ordinary firmness from

exercising his First Amendment rights. We conclude that a reasonable jury could

find that the threat, if made, was sufficient to deter a person of ordinary firmness

from filing additional grievances. Even though the threat was not made as part of a

“prolonged campaign of harassment,” the statement was likely to have a deterrent

effect because Captain Svir held a position of significant authority and his job

involved reviewing grievances. Further, “something drastic” could easily be



                                           7
interpreted by an inmate as a threat of physical violence, either directly or thru

deliberate inattention.

      As for Pittman’s allegations that Sergeant Clemons told him to, “Learn to

play the game or have a boot put in your ass,” this statement may not have been

meant literally, but it could be interpreted as a threat of physical violence.

Although Pittman failed to provide any evidence that would support his allegation

that Clemons intercepted his letter to the institutional inspector, Clemons stated

during the conversation that he [Pittman] would continue to “catch DR after DR”

and eventually be put in close management confinement if he continued to file

grievances. Therefore, if the initial threat is examined in the broader context of the

conversation, a reasonable jury could find that, “play[ing] the game” meant not

filing additional grievances. Accordingly, a reasonable jury could find that there

was a threat of possible violence that could deter a person of ordinary firmness

from filing additional grievances.

      In summary, we conclude that a reasonable jury could interpret the

statements made by Captain Svir and Sergeant Clemons to be threats of physical

violence that could deter a person of ordinary firmness from filing grievances, and,




                                            8
therefore, we hold that the district court erred in granting summary judgment to

these two defendants regarding these claims of retaliation.1

       Concerning the verbal threats of future disciplinary actions, the record

indicates that before a prisoner was assigned to confined management due to a

disciplinary issue, a multi-step review was conducted. Specifically, after the

disciplinary report was filed, a classification officer would review the situation and

decide whether to submit a request to change the inmate’s custody. The prisoner

would then have the opportunity to plead his case to a four or five member

classification team or committee. If the committee decided to change the

classification from minimum to medium custody, then, before such a decision

could be finalized, it was reviewed by a state classification officer who had final

authority on all custody changes.

       Pittman has provided no evidence that would indicate that a reasonable

person would believe he would not receive a fair review by the classification

committee or a state classification officer if a false disciplinary report was filed.

When Pittman was given the opportunity to explain his side during one



       1
          Pittman also argues that Clemons arranged for him to be physically abused when he
was returned to confinement. The only support he provides for this allegation is his account of a
conversation with another officer who told him that he had stopped the officers from carrying
out the plan. Because inadmissible hearsay generally cannot be considered on a motion for
summary judgment, the district court was correct in finding that this claim could not survive
summary judgment. See Macuba v. Deboer, 193 F.3d 1316, 1322 (11th Cir. 1999).
                                                9
disciplinary investigation, he refused to give a written statement, and he said that

he would only discuss the matter with the head inspector. Thus, there is no

evidence before us to indicate that, had Pittman explained his side, the

classification officers and classification committee would have resolved the

proceedings based solely upon the officer’s allegedly false disciplinary report.

Without more, we cannot conclude that a person of ordinary firmness would be

deterred from exercising his First Amendment rights because Pittman has not

shown that challenging a disciplinary report during the multi-step investigatory

process would be futile.

      Further, Pittman’s allegation that the confrontation with Captain Svir

regarding the grievance “led to a long string of [retaliatory] [a]cts” is merely

conclusory. The causal connection between Captain Svir’s comments and

Pittman’s eventual confinement is too tenuous to survive a motion for summary

judgment.

      We also conclude that Pittman’s allegations of a conspiracy between

Sergeants Graham, Clemons, and Davis must fail because Pittman has not shown

that a person of ordinary firmness would be deterred from filing grievances, even if

threatened with a false disciplinary report, given the multi-step investigatory

process. In addition, Pittman’s claims regarding the conspiracy were inconsistent

with his statements during the investigatory proceedings because, there, he stood
                                           10
mute in the face of the allegations against him and gave the classification

committee no choice but to recommend confinement.

      Accordingly, we vacate the district court’s entry of summary judgment in

favor of Captain Svir and Sergeant Clemons regarding Pittman’s claims of

retaliation based on threats of future violence, and remand the case for further

proceedings on those claims. We affirm the district court’s judgment on all other

claims.

      AFFIRMED IN PART; VACATED AND REMANDED IN PART.




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