On February 16, 2024, the U.S. Court of Appeals for the Eleventh Circuit affirmed a grant of qualified immunity (QI) to three Alabama Department of Corrections (DOC) officials and dismissed a prisoner’s suit alleging they retaliated against him because he accused one of them of sexual assault—and then was disciplined for “lying” when the guard was cleared.

The Court’s decision affirmed a maddening display of circular reasoning by DOC, which essentially argued that the prisoner’s discipline proved his guilt. It is even more troubling given the plain language of the Prison Rape Elimination Act (PREA), 42 U.S.C. ch. 147 § 15601 et seq, which specifically bars prison officials from finding that a sexual assault report “made in good faith” by a prisoner “constitute[s] falsely reporting an incident or lying even if an investigation does not establish evidence sufficient to substantiate the allegation.”

Germaine Smart was confined at St. Clair Correctional Facility in September 2016, when Sgt. Ronald England handcuffed him and removed him from his cell for a pat-down search. During the search, Smart alleged that the guard sexually fondled him, prompting Smart to exclaim: “What the f--k are you doing grabbing my d--k and nuts . . . I’m not gay!” In response, England allegedly “snickered with a smile showing gratifying sexual desire.”

Smart first filed an administrative complaint, which DOC staffer George Bynum investigated. He interviewed seven people, including two prisoners who witnessed the pat-down search and claimed to see England fondle Smart, as well as a guard who heard Smart exclaim that “England grabbed his penis.” Of course, England denied the allegations during his interview, while Smart reaffirmed his written statements. Bynum’s report then called Smart’s sexual assault allegation “unfounded,” meaning it was “was investigated and determined not to have occurred” under DOC Admin. Reg. 454, § III(A)(2).

England next initiated prison disciplinary proceedings, charging Smart with “lying” under DOC Admin. Reg. 403, Rule 512. But while DOC regulations permit disciplinary action for falsely reporting sexual assault, a finding that the allegation is unfounded cannot by itself support discipline, per DOC Admin. Reg. 454, § V(H)(2)(b), (c)—the rule that codifies PREA’s protection for sexual assault claims. Nevertheless, Smart was found guilty of “lying” at a disciplinary hearing. As sanctions, he lost privileges for 30 days and was confined in disciplinary segregation for 21 days.

Smart filed suit pro se in U.S. District Court for the Northern District of Alabama, alleging that England, Baker and Malone retaliated against him for reporting England’s sexual assault, in violation of his First Amendment rights. The guards moved to dismiss the complaint based on QI, and the district court agreed, finding no clearly established law put them on notice that disciplining a prisoner after finding his sexual assault accusation “unfounded” could be considered unconstitutional retaliatory conduct. Smart appealed.

The Eleventh Circuit began its analysis by noting that prison officials enjoy QI “when they act within their discretionary authority and do not violate any clearly established federal right,” per Laskar v. Hurd, 972 F.3d 1278 (11th Cir. 2020). The Court’s majority determined that disciplining Smart fell within the guards’ discretionary authority, so Defendants enjoyed the presumption of QI.

In dissent, Judge Nancy Gbana Abudu argued that guards had exceeded their authority by conducting a clearly “unlawful hearing” under PREA—where Smart was found guilty of lying based “solely” on the fact that his sexual assault allegation was deemed unfounded. The majority rejected this argument, though, concluding that Smart’s guilt was not based “solely” on Bynum’s report finding the assault allegation unfounded; it was also based on England’s testimony, which Baker found more credible than that of Smart and his fellow prisoners.

Judge Abudu objected that there was no evidence that Smart’s allegations constituted “lying”—just the hearing officer’s decision to credit a guard’s testimony over that of prisoners. Sadly, this well-reasoned dissent did not carry the day. The majority held that since Smart’s speech was found false, and the First Amendment does not protect false speech, his complaint failed to state a valid retaliation claim. Dismissal of his case was therefore affirmed. Before the Court, Smart was represented by attorneys with the NAACP Legal Defense and Educational Fund in New York City. See: Smart v. England, 93 F.4th 1283 (11th Cir. 2024).  

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