SUSSMAN
v.
SECRETARY DEPT OF CORRECTIONS DOC
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The court held that a prison disciplinary report based on an inmate's language, whether threatening or disrespectful, does not violate constitutional rights and can be dismissed for failure to exhaust administrative remedies or lack of merit.
Petitioner, an inmate, filed a § 2254 petition for writ of habeas corpus challenging a prison disciplinary report issued for his language used in a gr…
The full statement of facts, procedural history, and disposition for this case are member content.
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and has determined that the report and recommendation is due to be adopted. Like the magistrate judge, the undersigned not only concludes that Petitioner failed to exhaust his administrative remedies, but also finds that Petitioner’s § 2254 habeas petition—challenging a prison disciplinary report on First Amendment grounds—fails on the merits. Whether the language used in Petitioner’s grievance is construed as threatening or simply disrespectful,1 Respondent’s issuance of a disciplinary report based on that language did not violate Petitioner’s constitutional rights. Petitioner’s objections to the contrary are unpersuasive. See Mathews v. Paynter, 752 F. Appx. 740, 744 (11th Cir. 2018) (holding that an inmate’s disrespectful speech in a grievance violated Florida Administrative Code, Rule
33–601.314(1), and was not protected speech, thus requiring dismissal of the inmate’s complaint for failure to state a claim). Accordingly, it is ORDERED:
1. The magistrate judge’s report and recommendation (ECF No. 24) is ADOPTED and incorporated by reference into this order. 2. Respondent’s motion (ECF No. 15) to dismiss for failure to exhaust administrative remedies is GRANTED.
3. Petitioner’s § 2254 habeas petition is DISMISSED. 4. The clerk shall enter judgment stating: “All claims are DISMISSED.”
5. The clerk shall close the case.
6. A certificate of appealability is DENIED.
7. Leave to appeal in forma pauperis is DENIED.
DONE AND ORDERED this 19th day of November , 2021.
s/ William Stafford