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Case 1:09-cv-22905-JAL Document 62 Entered on FLSD Docket 06/17/2011 Page 3 of 6 3 Stringer v. Jackson, et al. Case No. 09-22905-Civ-Lenard/White from the exercise of First Amendment rights.” Id. Moreover, in determining whether a defendant‟s alleged actions were sufficiently adverse, “how plaintiff acted might be evidence of what a reasonable person would have done.” Id. at 1252 (citing Garcia v. City of Trenton, 348 F.3d 726, 729 (8th Cir. 2003)). In this case, the many Inmate Grievances submitted by the Plaintiff after Jackson and Harris allegedly retaliated against him clearly indicate the absence of any “adverse effect” on Plaintiff‟s ability to exercise his First Amendment rights. See Plaintiff‟s Inmate Grievance Forms filed after July 2, 2009 [D.E. #56 at Exhibit “A”]. Here, Plaintiff was completely undeterred from exercising his First Amendment rights in response to Defendants‟ alleged retaliation, and this is how anyone of ordinary firmness would respond. Given that Defendants‟ Motion to Dismiss has established Plaintiff‟s prompt and frequent use of the grievance process, Plaintiff‟s section 1983 claim for retaliation against Jackson and Harris lacks any merit whatsoever and warrants dismissal. In addition, a valid claim for retaliation under section 1983 requires that the “adverse effect” caused by defendant‟s retaliatory conduct must be more than a “de minimis inconvenience” to the exercise of plaintiff‟s First Amendment rights. Bennett, 423 F.3d at 1252. In his own Inmate Grievance Form dated October 6, 2009, which references the retaliatory transfer alleged in the Second Amended Complaint, Plaintiff states that he went from a “single room with desk, toilet, sink, adequate space, privacy, storage for legal materials—to a top bunk in a severely overcrowded, more dangerous cell.” See Plaintiff‟s Inmate Grievance Form dated October 6, 2009 [D.E. #56 at Exhibit “C”]. Therefore the “harsher and more dangerous” conditions alleged in Plaintiff‟s Second Amended Complaint simply consist of a denial of comfort, space, and privacy—precisely the type of “de minimis inconvenience” found insufficient to support a claim for retaliation. See, e.g., Thomas v. Latimer, No. 4:07-CV-74,
Case 1:09-cv-22905-JAL Document 62 Entered on FLSD Docket 06/17/2011 Page 4 of 6 4 Stringer v. Jackson, et al. Case No. 09-22905-Civ-Lenard/White 2009 WL 536507, at *6 (N.D. Fla. Mar. 3, 2009) (holding a prisoner alleged only “de minimis inconvenience” where he complained of being held in solitary confinement for twenty days as a result of an inaccurate disciplinary report); Anderson v. McCalpin, No. 5:04cv44, 2007 WL 2900445, at *4 (N.D. Fla. Sept. 29, 2007) (finding that inmate being held for twelve days in solitary confinement in a cell for disruptive prisoners was no more than a “de minimis inconvenience” and insufficient to state a claim for retaliation). Ultimately, due to the incorporation by reference doctrine and the ability to take judicial notice of public records, the Court is in a position to dismiss the retaliation claim in Plaintiff‟s Second Amended Complaint without converting Defendants‟ Rule 12(b)(6) motion to dismiss into a Rule 56 motion for summary judgment. See Halmos v. Bomardier Aerospace Corp., 2010 WL 4941957 at *1 (11th Cir. Dec. 7, 2010) (holding that district court may take judicial notice of matters of public record without converting a Rule 12(b)(6) motion into a Rule 56 motion) (citing Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1278 (11th Cir. 1999)). The Eleventh Circuit‟s prior ruling in this case was limited only to Plaintiff‟s complaint at the initial screening stage, without the benefit of any factual development as provided in Defendants‟ Motion to Dismiss. At this point in the proceedings, however, Plaintiff‟s Inmate Grievance Forms, public records of undisputable authenticity central to Stringer‟s claim, provide sufficient factual development to mandate dismissal of Plaintiff‟s claim for retaliation. II. Defendants object to Magistrate Judge White’s refusal to rule on qualified immunity at this stage of the proceedings. Defendants also object to Magistrate Judge White‟s erroneous conclusion that “[t]he facts are not sufficient at this time to enable the Court to make a determination of whether the defendants might be entitled to qualified immunity, and that issue may be decided at a later date when the facts are more developed.” Report at 6 [D.E. #59]. The Eleventh Circuit has expressly
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