US District Court Southern District of Florida (Miami) - United States ...

Case 1:09-cv-22905-JAL Document 62 Entered on FLSD Docket 06/17/2011 Page 2 of 6
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Stringer v. Jackson, et al.
Case No. 09-22905-Civ-Lenard/White
reasons‟ . . . [and] [b]ased on a liberal construction of Stringer‟s assertions, he did allege a claim
of First Amendment retaliation in connection with the grievances he filed.” Stringer v. Jackson,
392 F. App‟x, 759, 761 (11th Cir. 2010) (citing Boxer X v. Harris, 437 F.3d 1107, 1112 (11th
Cir. 2006)) [D.E. #26]; see also Report at 4-5 [D.E. #59]. Although the Eleventh Circuit‟s
aforementioned holding was limited only to Plaintiff‟s ability to amend his complaint after
Magistrate Judge White‟s initial screening, the Report concludes that “defendants‟ argument that
the plaintiff failed to state a claim for retaliation at this preliminary stage, without further factual
development fails.” Report at 5 [D.E. #59] (emphasis added). Magistrate Judge White‟s
conclusion is misguided, however, given that Defendant‟s Motion to Dismiss does provide
further factual development to counteract and overcome Plaintiff‟s alleged claim of retaliation in
the form of Plaintiff‟s own Inmate Grievances. See Horsley v. Feldt, 304 F.3d 1125, 1134 (11th
Cir. 2002) (permitting courts to consider documents that are central to the claim and obviously
authentic in ruling on a motion to dismiss); Jackson v. BellSouth Telecomm., 181 F. Supp. 2d
1345, 1353-54 (S.D. Fla. 2001) (determining that a court can consider “matters of public record,
items appearing in the record of the case,” and documents “refer[ed] to . . . in the complaint
and . . . central to the plaintiff‟s claim”).
In order to state a claim for retaliation under section 1983, a plaintiff must allege three
elements: (1) that his speech or act was constitutionally protected; (2) that the defendant‟s
retaliatory conduct adversely affected the protected speech or act; and (3) that there is a causal
connection between the retaliatory actions and the adverse effect. Bennett v. Hendrix, 423 F.3d
1247, 1250 (11th Cir. 2005). The Eleventh Circuit has adopted an objective test as the standard
for determining whether there has been an adverse effect: “[A] plaintiff suffers adverse action if
the defendant‟s allegedly retaliatory conduct would likely deter „a person of ordinary firmness‟