Leon Wildberger v. Sgt. David Bracknell, Lt. Robert Simmons, Steve Hicks, Co II, 869 F.2d 1467, 11th Cir. (1989)

869 F.
2d 1467
Leon WILDBERGER, Plaintiff-Appellant,

v.
Sgt. David BRACKNELL, Lt. Robert Simmons, Steve Hicks,
CO
II, et al., Defendants-Appellees.
No. 88-7373
Non-Argument Calendar.
United States Court of Appeals,

Eleventh Circuit.
April 14, 1989.
Harry A. Lyles, Gen. Counsel, Alabama Dept. of Corrections Legal Div.,

John T. Harmon, Montgomery, Ala., for defendants-appellees.
Appeal from the United States District Court for the Northern District of
Alabama.
Before TJOFLAT and COX, Circuit Judges, and TUTTLE, Senior Circuit
Judge.
PER CURIAM:
This is an appeal from the dismissal by the trial court of appellant's 42 U.S.C.
Sec. 1983 action against Alabama Department of Corrections officials, Sgt.
Bracknell, Lt. Simmons, Associate Warden DeLoach and correctional officers
Hicks and Twyman.
Appellant's principal contentions were that he had been denied a federal

constitutional right, because the defendants violated the grievance procedures
established by the State Department of Corrections, and because he had been
disciplined by being placed in segregation in retaliation for his having filed
several grievances under the state's grievance procedures. He also alleged that
he had been personally assaulted by one Lt. Moore, whom he did not name as a
defendant. In addition, the complaint challenged the fairness and impartiality of
the disciplinary committee that had acted on his grievance. His charge in this
respect is principally due to the fact that two members of the grievance
committee were in supervisory positions over the persons charged with
responsibility for the alleged illegal conduct; plaintiff also claimed that the
chairman of the committee unfairly denied plaintiff's request to call two
additional witnesses at the disciplinary hearing, which restricted his ability to
establish his innocence.
3
The trial court adopted the report and recommendation of the magistrate,
holding that the petition should be dismissed on the defendants' motion for
summary judgment. The magistrate concluded that the violation of the
grievance procedure did not rise to the level of a constitutional violation, since
there was no entitlement to a grievance procedure under the Federal
Constitution. The recommendation also held that since there was no right to a
grievance procedure under the Constitution, a claim of retaliation for filing a
grievance also did not state a constitutional claim. As to the claim for the
personal assault, the magistrate found that the suit was properly dismissed,
since Moore had not been made a defendant and had received no notice of the
lawsuit. The magistrate's recommendation found that, although the claim of
lack of a fair and impartial disciplinary committee implicated federal
constitutional rights, the minimum requirements of due process were met under
the standard stated in Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41
L.Ed.2d 935 (1974).
We conclude that the trial court erred in one respect in granting the motion for
summary judgment.
5Claim of Retaliation.
6
As stated above, Wildberger averred that his constitutional rights had been
violated since, as he alleged, he had been disciplined because he had filed
several grievances in the past. He claims this is a clear case of an inmate being
punished for exercising his First Amendment right to "freedom of speech" and
his right "to petition the government for a redress of grievances."1
This Court has decided a number of cases dealing with quite similar
constitutional issues. In Wright v. Newsome, 795 F.2d 964 (11th Cir.1986), we
said:
Wright also sufficiently alleged facts bringing actions that might not otherwise
be offensive to the Constitution ... within the scope of the Constitution by
alleging that the actions were taken in retaliation for filing lawsuits and
administrative grievances. This type of retaliation violates both the inmate's
right of access to the courts, Hooks v. Kelley, 463 F.2d 1210 (5th Cir.1972),
and the inmate's First Amendment rights. See Bridges v. Russell, 757 F.2d
1155 (11th Cir.1985). The district court erred in dismissing the retaliation claim
for failure to state a claim for which relief can be granted.
9
795 F.2d at 968 (emphasis supplied). In Bridges v. Russell, 757 F.2d 1155
(11th Cir.1985), this Court said:
10
Critical issues of fact remain to be decided in this case. The appellant has
alleged that he was transferred because: (1) he filed a grievance against his
work supervisor alleging racial discrimination in the assignment of work tasks;
(2) he actively encouraged other inmates to protest this treatment by signing a
petition; and (3) he prepared, upon request, a similar grievance for another
prisoner to sign.
11
Id. at 1157.
12
It seems clear that if appellant is able to establish that his discipline was the
result of his having filed a grievance concerning the conditions of his
imprisonment, he will have raised a constitutional issue, under the authority of
these cases.
CONCLUSION
13
Accordingly, we must REVERSE the trial court's judgment dismissing the

complaint and REMAND for further consideration.
Amendment I of the United States Constitution provides:

Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging the freedom of speech, or of
the press; or of the right of the people peaceably to assemble, and to petition the
Government for a redress of grievances.
The provisions of this Amendment were, of course, incorporated within the
provisions of the Fourteenth Amendment to become applicable to the states.
See, e.g., Wallace v. Jaffree, 472 U.S. 38, 48-49, 105 S.Ct. 2479, 2485-86, 86
L.Ed.2d 29 (1985).

Leon Wildberger v. Sgt. David Bracknell, Lt. Robert Simmons, Steve Hicks, Co II, 869 F.2d 1467, 11th Cir. (1989)

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869 F.

Leon WILDBERGER, Plaintiff-Appellant,

United States Court of Appeals,

Harry A. Lyles, Gen. Counsel, Alabama Dept. of Corrections Legal Div.,

Appellant's principal contentions were that he had been denied a federal

Accordingly, we must REVERSE the trial court's judgment dismissing the

Amendment I of the United States Constitution provides:

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