[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 10-10508 AUG 25, 2011
JOHN LEY
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 9:08-cv-80940-KAM
RODGER LOVETTE,
Plaintiff - Appellant,
versus
LORVIA PAUL,
Defendant - Appellee,
SUSAN CICIRRELLI,
et al.,
Defendants.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(August 25, 2011)
Before EDMONDSON, WILSON and BLACK, Circuit Judges.
PER CURIAM:
Plaintiff-Appellant Rodger Lovette appeals an unfavorable jury verdict on
his section 1983 pro se prisoner complaint alleging that Defendant-Appellee
prison guard Lorvia Paul retaliated against Plaintiff in violation of his First
Amendment rights. No reversible error has been shown; we affirm.
The essence of Plaintiff’s First Amendment claim is that Paul filed a
disciplinary report -- that Plaintiff argues was false -- in retaliation for grievances
that Plaintiff had filed against Paul. “First Amendment rights to free speech and to
petition the government for a redress of grievances are violated when a prisoner is
punished for filing a grievance concerning the conditions of his imprisonment.”
Boxer X v. Harris, 437 F.3d 1107, 1112 (11th Cir. 2006). To state a First
Amendment retaliation claim under section 1983, a prisoner must show that (1) his
speech was constitutionally protected; (2) he suffered adverse action such that the
administrator’s allegedly retaliatory conduct likely would deter a person of
ordinary firmness from engaging in such speech; and (3) a causal relationship
existed between that retaliatory act and the protected speech. Smith v. Mosley,
532 F.3d 1270, 1276 (11th Cir. 2008).
The heart of Plaintiff’s argument on appeal is that he presented sufficient
evidence to the jury that the disciplinary report issued by Paul was false and was
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written in retaliation for grievances filed against Paul. In sum, Plaintiff argues the
jury reached the wrong result. But in reviewing the record, we must neither
second-guess the jury nor substitute our own judgment for that of the jury if the
jury’s verdict is supported by sufficient evidence. See Brochu v. City of Riviera
Beach, 304 F.3d 1144, 1155 (11th Cir. 2002). And because Plaintiff made no
motion for a directed verdict, see Wilson v. Attaway, 757 F.2d 1227, 1237 (11th
Cir. 1985) (“sufficiency of the evidence supporting jury verdict is not reviewable
on appeal ... unless a motion for directed verdict was made at the close of all
evidence”), we review only “whether there was any evidence to support the jury’s
verdict, irrespective of its sufficiency, or whether plain error was noted which, if
not noticed, would result in a manifest miscarriage of justice.” Id. (internal
quotations omitted).
The jury found that Plaintiff ‘s grievance was constitutionally protected
speech; he satisfied the first part of the retaliation test. But evidence existed that
the second and third parts of the retaliation test were not satisfied. About the
second part, Plaintiff admitted that Paul’s alleged retaliatory filing of a
disciplinary report did not deter him from filing further grievances. About the
third part, the jury heard testimony that Paul followed applicable procedure in
issuing the disciplinary report and was not motivated to act in retaliation for
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Plaintiff’s grievances against her. Although Plaintiff testified that the disciplinary
report was falsified, Plaintiff admitted that he had been convicted of a crime of
dishonesty in the last ten years. The jury was free to believe the testimony of
Defendant Paul rather than Plaintiff’s protestations of innocence.
We have considered all arguments advanced by Plaintiff; no reversible error
has been shown.*
AFFIRMED.
*
Plaintiff’s argument that the jury instructions were misleading is without merit. The
bases of his challenge on appeal are that (i) the instructions were misleading because they were
not tailored to the facts of this case; and (ii) the instructions’ requirement that the jury find that
Plaintiff was “intentionally retaliated against” is a misstatement of the law. No objection on
these bases was made below; plain error review applies. “When reviewing a jury instruction
under the plain error standard, we will reverse only in exceptional cases where the error is so
fundamental as to result in a miscarriage of justice.” Montgomery v. Noga, 168 F.3d 1282, 1294
(11th Cir. 1999) (internal quotations and citations omitted). The court’s jury instructions were not
plainly erroneous. The instructions were tailored to the facts of the case and were modeled on
the Eleventh Circuit’s pattern jury instructions. Error in the instructions -- if error exists -- is
neither plain nor fundamental.
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