The Eleventh Circuit Court of Appeals reversed a grant of summary judgment in a prisoner’s civil rights action alleging the Florida Department of Corrections (FDOC) has a widespread practice and custom of transferring prisoners in retaliation for exercising their First Amendment rights.

Glenn Smith, who the Eleventh Circuit described as an “extremely litigious” prisoner, filed at least ten separate lawsuits against FDOC and its employees from 2001 and 2006. Smith, a certified law clerk, considers his filing of grievances and lawsuits are to make “positive social changes to the Florida prison system.”

While at Martin Correctional Institution in February 2003, Smith filed an appeal from a state court’s decision in favor of the FDOC and then initiated a separate lawsuit against the FDOC. Just fifteen days later, Smith was transferred, under the guise of “population adjustment,” to Okeechobee Correctional Institution, which is known as a punitive-type prison.

The attempt to resist the transfer by refusing to get on the bus resulted in Smith ultimately being shackled and forced on the bus, causing disciplinary action to be taken for disobeying orders. Smith filed a civil rights action in August 2006 alleging his transfer was retaliatory, challenging FDOC’s policy that allows discipline of an order a prisoner deems unlawful, and challenging his disciplinary report.

The South Florida District dismissed the complaint in its entirety, but the Eleventh Circuit reversed the retaliatory transfer claim. See: Smith v. Fla. Dep’t of Correction, 318 Fed. App’x 726 (11th Cir 2008). Discovery ensued after the remand, which included FDOC taking Smith’s deposition. Prison officials then moved for summary judgment, which the district court granted despite Smith’s argument that he was not provided a fair opportunity to conduct discovery.

On appeal, the Eleventh Circuit found the district court abused its discretion in granting judgment to the FDOC. It held Smith “sufficiently established that one could conclude that the protected conduct [of filing lawsuits] was a motivating factor behind the transfers” through affidavits from other prisoners who were transferred immediately after filing lawsuits and/or grievances, which shows that such prisoners “were transferred more often than the average prisoner.”

FDOC said Smith was transferred with a group of 50 prisoners for the purpose of “population adjustment.” The Eleventh Circuit held “Smith is entitled to know how and why these selections were made.” It also held he is entitled to discovery from other prisoners throughout the system who he specified possessed information relevant to his claim. Finally, the Court found FDOC’s “suspect conduct” in not obeying the district court’s order to provide Smith a copy of his deposition prevented him from properly opposing the FDOC’s motion.

The Eleventh Circuit reversed the grant of summary judgment and ordered that Smith be appointed counsel. After remand, FDOC again moved for summary judgment, which was denied in July 2014. Ultimately, however, the district court entered final judgment in favor of the FDOC on March 27, 2015. Smith against appealed to the Eleventh Circuit, and his appeal remained pending as of April 2016. See: Smith v. Fla Dep’t of Corrections, 713 F. 3d 1059 (11th Cir 2013). 

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