Hoever v. Carraway, Correctional Officer, et al., FL, Motion with attached Amici Curiae Brief, 2020

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No. 17-10792

In the United States Court of Appeals for the Eleventh Circuit
CONRAAD L. HOEVER,
Plaintiff-Appellant-Cross Appellant,
v.
C. CARRAWAY, Correctional Officer, et al., Defendants,
R. MARKS, Correctional Officer, C. PAUL, Correctional Officer Sergeant,
Defendants-Appellants-Cross Appellees.
On Appeal from the
United States District Court for
the Northern District of Florida,
Case No. 4:13-cv-00549-MW-GRJ
Motion of American Civil Liberties Union, American Civil Liberties Union of
Georgia, Americans for Prosperity Foundation, Cato Institute, The Center for
Access to Justice, Florida Justice Institute, Human Rights Defense Center,
and Southern Center for Human Rights For Leave To File En Banc Amicus
Curiae Brief in Support of Plaintiff-Cross-Appellant Hoever
Sean J. Young
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION OF
GEORGIA
PO Box 77208
Atlanta, GA 33057
Tel: (770) 303-8111
Email: syoung@acluga.org

Bruce E.H. Johnson
Caesar Kalinowski IV
Jordan C. Harris
DAVIS WRIGHT TREMAINE LLP
920 Fifth Avenue, Suite 3300
Seattle, Washington 98104
Tel: (206) 757-8232
Email: brucejohnson@dwt.com
caesarkalinowski@dwt.com
jordanharris@dwt.com

Counsel for Amici Curiae

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CERTIFICATE OF INTERESTED PERSONS AND
CORPORATE DISCLOSURE STATEMENT
Pursuant to Fed. R. App. P. 29 and 11th Cir. Rule 26.1-1, the undersigned
hereby certifies the following list of trial judges, attorneys, persons, associations of
persons, firms, partnerships, or corporations that may have an interest in the
outcome of this appeal from Appellee’s Rehearing En Banc:
Alston & Bird LLP, counsel for Appellee/Cross-Appellant/Plaintiff Conraad
Hoever.
Davis Wright Tremaine LLP, Attorneys for Amici.
Gonzalez, Eric, former Assistant Attorney General, Office of the Attorney
General, Tallahassee, Florida, counsel for Defendants Marks, Paul, and
Nunez.
Graper, Marcus O., Senior Assistant Attorney General, Office of the
Attorney General, Tallahassee, Florida, counsel for Appellants/Cross
Appellees/Defendants Marks, Paul, and Nunez.
Gwaltney, William W., former Assistant Attorney General, Office of the
Attorney General, Tallahassee, Florida, counsel for Appellants/Cross
Appellees/Defendants Marks, Paul, and Nunez.
Harris, Jordan, Davis Wright Tremaine LLP, Attorney for Amici
Hoever, Conraad, Appellee/Cross-Appellant/Plaintiff.
Johnson, Bruce, Davis Wright Tremaine LLP, Attorney for Amici.
Jones, The Honorable Gary R., Magistrate Judge for the Northern District of
Florida.
Kalinowski IV, Caesar, Davis Wright Tremaine LLP, Attorney for Amici.
Marks, Robert, employee of the Florida Department of Corrections,
Appellant/Cross-Appellee/Defendant.

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Meals, Darcy M., The Center for Access to Justice, Attorney for Amici.
Moody, Ashley, Attorney General, Office of the Attorney General,
Tallahassee, Florida counsel for Appellants/Cross-Appellees/Defendants
Marks, Paul, and Nunez.
Neily III, Clark M., Cato Institute, Attorney for Amici.
Nunez, John, former employee of the Florida Department of Corrections,
Defendant, Cross-Appellee, and former Appellant.
Paul, Caleb, employee of the Florida Department of Corrections,
Appellant/Cross-Appellee/Defendant.
Pepson, Michael, Americans for Prosperity Foundation, Attorney for Amici.
Pryor, Alan, Alston & Bird LLP, counsel for Appellee/CrossAppellant/Plaintiff Conraad Hoever.
Ram, Megha, Roderick & Solange MacArthur Justice Center, counsel for
Appellee/Cross-Appellant/Plaintiff Conraad Hoever.
Roderick & Solange MacArthur Justice Center, counsel for Appellee/CrossAppellant/Plaintiff Conraad Hoever.
Sandick, Phil, Alston & Bird LLP, counsel for Appellee/CrossAppellant/Plaintiff Conraad Hoever.
Schweikert, Jay R., Cato Institute, Attorney for Amici.
Shapiro, David, Roderick & Solange MacArthur Justice Center, counsel for
Appellee/Cross-Appellant/Plaintiff Conraad Hoever.
Tuck, Andrew, Alston & Bird LLP, counsel for Appellee/CrossAppellant/Plaintiff Conraad Hoever.
Walker, The Honorable Mark E., District Judge for the Northern District of
Florida.
In addition, amici submit the following corporate disclosure information
about themselves:

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Amicus curiae American Civil Liberties Union is a not-for-profit corporation
with no parent company or publicly held affiliates.
Amicus curiae American Civil Liberties Union of Georgia is a not-for-profit
corporation with no parent company or publicly held affiliates.
Amicus curiae Americans for Prosperity Foundation is a not-for-profit
corporation with no parent company or publicly held affiliates.
Amicus curiae Cato Institute is a not-for-profit corporation with no parent
company or publicly held affiliates.
Amicus curiae The Center for Access to Justice is a not-for-profit entity
within the Georgia State University College of Law, part of the University
System of Georgia, which has no parent company or publicly held affiliates.
Amicus curiae Florida Justice Institute is a not-for-profit corporation with no
parent company or publicly held affiliates.
Amicus curiae Human Rights Defense Center is a not-for-profit corporation
with no parent company or publicly held affiliates.
Amicus curiae Southern Center for Human Rights is a not-for-profit
corporation with no parent company or publicly held affiliates.
Pursuant to Eleventh Circuit Rule 26.1-3, the undersigned further certifies
that no publicly traded company or corporation has an interest in the outcome of
the case or appeal.
s/ Bruce E.H. Johnson
Bruce E.H. Johnson

iii

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INTRODUCTION AND RELIEF REQUESTED

The American Civil Liberties Union (“ACLU”), American Civil Liberties
Union of Georgia (“ACLU of Georgia”), Americans for Prosperity Foundation
(“AFPF”), Cato Institute (“Cato”), The Center for Access to Justice (“The
Center”), Florida Justice Institute (“FJI”), Human Rights Defense Center
(“HRDC”), and Southern Center for Human Rights (“SCHR”) (collectively,
proposed “amici”), are a collection of nonpartisan, nonprofit organizations
dedicated to promoting and protecting civil liberties provided for under the Bill of
Rights. Amici respectfully request leave, pursuant to Federal Rule of Appeal 29
and 11th Circuit Rules 29-1 and 29-2, to file the accompanying amicus brief in
support of the en banc rehearing in this matter.
II.

STATEMENT OF INTEREST

Amici have a significant interest in ensuring that the constitutional rights of
incarcerated persons are protected and enforced and that their right to access the
courts is not impeded.
The ACLU and ACLU of Georgia are steadfast defenders of First
Amendment freedoms. The ACLU is a nationwide organization founded in 1920
with nearly two million members and supporters dedicated to protecting the
fundamental liberties and basic civil rights guaranteed by state and federal
Constitutions. The ACLU of Georgia is one of the 52 affiliates of the ACLU and

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is devoted to civil rights advocacy on behalf of its approximately 11,000 members
and 83,000 supporters. Like the national ACLU, the ACLU of Georgia is
dedicated to protecting the fundamental liberties and basic constitutional civil
rights, to include those of incarcerated persons.
AFPF is a 501(c)(3) nonprofit organization committed to educating and
training Americans to be courageous advocates for the ideas, principles, and
policies of a free and open society. As part of this mission, it appears as amicus
curiae before federal and state courts. AFPF is interested in this case because it
believes that victims of government misconduct should be able to vindicate their
constitutional rights, including First Amendment rights, by holding the responsible
officials accountable for their unlawful actions.
Cato is a nonpartisan public policy research foundation founded in 1977 and
dedicated to advancing the principles of individual liberty, free markets, and
limited government. Cato’s Project on Criminal Justice focuses on the scope of
substantive criminal liability, the proper role of police in their communities, the
protection of constitutional safeguards for criminal suspects and defendants, citizen
participation in the criminal justice system, and accountability for law enforcement
and prison officials.
The Center supports those working to ensure meaningful access to the courts
and equal treatment in the civil and criminal justice systems, with a regional focus

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on the South. To that end, the Center convenes stakeholders, engages in research
and public education, and trains the next generation of lawyers to serve the public
interest. The Center supports efforts to increase and protect access to justice for all
marginalized populations, including litigation to ensure incarcerated individuals’
rights.
FJI is a nonprofit organization founded in 1978 that regularly represents
incarcerated people throughout the state of Florida in civil rights cases seeking to
improve the conditions of prisons and jails. Through its advocacy and speech, it
seeks redress for people who have suffered abuse and harm at the hands of prison
officials.
HRDC is a nonprofit charitable organization headquartered in Florida that
advocates in furtherance of the human rights of people held in state and federal
prisons, local jails, immigration detention centers, civil commitment facilities,
Bureau of Indian Affairs jails, juvenile facilities, and military prisons. HRDC’s
advocacy efforts include publishing two monthly publications, Prison Legal News,
which covers national and international news and litigation concerning prisons and
jails, as well as Criminal Legal News, which is focused on criminal law and
procedure and policing issues, as well as publishing and distributing self-help and
legal reference books for prisoners.

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SCHR is a non-profit public interest law firm which is dedicated to
enforcing the civil rights of people in the criminal justice system.
The amici are well positioned to submit an amicus brief in this case. They
have long been committed to defending the First Amendment rights of individuals,
to include incarcerated persons.
III.

REASONS WHY AN AMICUS BRIEF IS DESIRABLE

First Amendment rights—whether exercised by the imprisoned or free
citizen—represent the foundation of American civil liberties and rights guaranteed
against intrusion by government actors. The matter before this Circuit now,
Hoever v. Carraway, No. 17-10792 (11th Cir. 2020), concerns the First
Amendment rights of prisoners and will have widespread precedential effects
within this Circuit regarding the future protection of those rights. As identified in
Mr. Hoever’s Petition for Rehearing En Banc filed August 18, 2020, and putative
amici’s previously admitted amicus curiae brief filed on September 23, 2020, the
underlying panel Opinion conflicts with the existing law of every sister Circuit to
address the issue. Although bound by this Court’s earlier erroneous decision in AlAmin v. Smith, 637 F.3d 1192, 1199 (11th Cir. 2011), the decision nonetheless
inherently undermines the First Amendment rights of all Eleventh Circuit citizens.
As this Court has now vacated the panel’s earlier decision, amici respectfully
request the opportunity to assist the en banc Court with its review of the case.

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The amici are well positioned to submit an amicus brief and assist the Court
in this matter. They have long been committed to defending individuals’ First
Amendment rights and have been at the forefront of numerous cases addressing the
Prison Litigation Reform Act (“PLRA”) and the First Amendment rights of
prisoners. The ACLU and ACLU of Georgia have been involved in many cases
addressing the First Amendment rights of prisoners, and SCHR recently provided
an amicus brief in support of HRDC in Prison Legal News v. Jones, 139. S.Ct. 795
(2019) (cert denied)—a case which addressed the First Amendment right of
incarcerated persons to receive mail. Moreover, institutions like Cato and AFPF
regularly participate as amicus in constitutional matters across the nation,
furthering their goals in educating the judiciary and protecting the public’s civil
liberties.
Amici are also uniquely positioned to apprise the Court of the implications of
this decision. As civil rights practitioners and policy advocates who regularly
advocate and advise on behalf of citizens’ First Amendment rights, amici are well
versed in the complex constitutional issues involving the very issues presented
here. Furthermore, amici have a substantial interest in assisting the Court with
other attendant First Amendment issues raised by Hoever that the Plaintiff/CrossAppellant’s brief necessarily omits. Given that they seek solely to provide the
Court with such support, in light of the important constitutional issues raised by

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this matter, amici submit that the appended amicus brief is desirable and relevant
to the Court’s consideration.
IV.

CONCLUSION

For the foregoing reasons, amici respectfully request this Court grant them
leave to file the amicus curiae en banc brief that is submitted herewith.
RESPECTFULLY SUBMITTED this 2nd day of December, 2020.
Counsel for Amici Curiae
s/ Bruce E.H. Johnson
Bruce E.H. Johnson
Caesar Kalinowski IV
Jordan C. Harris
DAVIS WRIGHT TREMAINE LLP
920 Fifth Avenue, Suite 3300
Seattle, Washington 98104
Tel: (206) 757-8232
Email: brucejohnson@dwt.com
caesarkalinowski@dwt.com
jordanharris@dwt.com
Sean J. Young
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION OF GEORGIA
PO Box 77208
Atlanta, Georgia 33057
Tel: (770) 303-8111
Email: syoung@acluga.org

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APPENDIX A
ADDITIONAL COUNSEL FOR AMICI CURIAE
Darcy M. Meals
CENTER FOR ACCESS
TO JUSTICE
85 Park Place NE
Atlanta, Georgia 30303
Tel: (404) 413-9253
Email: dmeals@gsu.edu

Clark M. Neily III
Jay R. Schweikert
CATO INSTITUTE
1000 Mass. Ave. N.W.
Washington, DC 20001
Tel: (202) 218-4631
Email: cneily@cato.org

Michael Pepson
AMERICANS FOR PROSPERITY
FOUNDATION
1310 North Courthouse Road,
7th Floor
Arlington, Virginia 22201
Tel: (571) 329-4529
Email: mpepson@afphq.org

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CERTIFICATE OF SERVICE
I hereby certify that on December 2, 2020, I electronically filed the foregoing
motion for leave to participate as amici curiae with the Clerk of the Court for the
United States Court of Appeals for the Eleventh Circuit using the CM/ECF system.
I certify that all participants in the case are registered CM/ECF users and that service
will be accomplished by the CM/ECF system.

Dated: December 2, 2020

s/ Bruce E.H. Johnson
Bruce E.H. Johnson

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No. 17-10792

In the United States Court of Appeals for the Eleventh Circuit
CONRAAD L. HOEVER,
Plaintiff-Appellant-Cross Appellant,
v.
C. CARRAWAY, Correctional Officer, et al., Defendants,
R. MARKS, Correctional Officer, C. PAUL, Correctional Officer Sergeant,
Defendants-Appellants-Cross Appellees.
On Appeal from the
United States District Court for
the Northern District of Florida,
Case No. 4:13-cv-00549-MW-GRJ
En Banc Brief of Amici Curiae American Civil Liberties Union, American
Civil Liberties Union of Georgia, Americans for Prosperity Foundation, Cato
Institute, The Center for Access to Justice, Florida Justice Institute, Human
Rights Defense Center, and Southern Center for Human Rights, in Support of
Plaintiff-Cross Appellant Hoever
Sean J. Young
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION OF
GEORGIA
PO Box 77208
Atlanta, GA 33057
Tel: (770) 303-8111
Email: syoung@acluga.org

Bruce E.H. Johnson
Caesar Kalinowski IV
Jordan Harris
DAVIS WRIGHT TREMAINE LLP
920 Fifth Avenue, Suite 3300
Seattle, Washington 98104
Tel: (206) 757-8232
Email: brucejohnson@dwt.com
caesarkalinowski@dwt.com
jordanharris@dwt.com

Counsel for Amici Curiae
i

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Moody, Ashley, Attorney General, Office of the Attorney General,
Tallahassee, Florida counsel for Appellants/Cross-Appellees/Defendants
Marks, Paul, and Nunez.
Neily III, Clark M., Cato Institute, Attorney for Amici.
Nunez, John, former employee of the Florida Department of Corrections,
Defendant, Cross-Appellee, and former Appellant.
Paul, Caleb, employee of the Florida Department of Corrections,
Appellant/Cross-Appellee/Defendant.
Pepson, Michael, Americans for Prosperity Foundation, Attorney for Amici.
Pryor, Alan, Alston & Bird LLP, counsel for Appellee/CrossAppellant/Plaintiff Conraad Hoever.
Ram, Megha, Roderick & Solange MacArthur Justice Center, counsel for
Appellee/Cross-Appellant/Plaintiff Conraad Hoever.
Roderick & Solange MacArthur Justice Center, counsel for Appellee/CrossAppellant/Plaintiff Conraad Hoever.
Sandick, Phil, Alston & Bird LLP, counsel for Appellee/CrossAppellant/Plaintiff Conraad Hoever.
Schweikert, Jay R., Cato Institute, Attorney for Amici.
Shapiro, David, Roderick & Solange MacArthur Justice Center, counsel for
Appellee/Cross-Appellant/Plaintiff Conraad Hoever.
Tuck, Andrew, Alston & Bird LLP, counsel for Appellee/CrossAppellant/Plaintiff Conraad Hoever.
Walker, The Honorable Mark E., District Judge for the Northern District of
Florida.
In addition, amici submit the following corporate disclosure information
about themselves:

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TABLE OF CONTENTS
Page
CERTIFICATE OF INTERESTED PERSONS AND CORPORATE
DISCLOSURE STATEMENT ................................................................................. ii
I.

SUMMARY OF ARGUMENT .......................................................................1

II.

ARGUMENT ...................................................................................................2

III.

The Eleventh Circuit Stands Alone in Diminishing First
Amendment Harms................................................................................2

Allowing Punitive Damages Will Improve Access to Justice
Without Creating “A Flood of Litigation” ............................................4

Violation of Citizens’ First Amendment Rights Involves
Irrevocable Harm...................................................................................7

Defendants’ Violations of Mr. Hoever’s Right to Expression
Caused Irrevocable Harm ....................................................................10

CONCLUSION..............................................................................................14

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TABLE OF AUTHORITIES
Page(s)
Cases
Al-Amin v. Smith,
637 F.3d 1192 (11th Cir. 2011) ...................................................................passim
Allah v. Al-Hafeez,
226 F.3d 247 (3d Cir. 2000) ................................................................................. 6
Aref v. Lynch,
833 F.3d 242 (D.C. Cir. 2016) ..................................................................2, 3, 4, 6
Arroyo Lopez v. Nuttall,
25 F. Supp. 2d 407 (S.D.N.Y. 1998) .............................................................. 8, 10
Bruce v. Ylst,
351 F.3d 1283 (9th Cir. 2003) ............................................................................ 11
Burton v. Livingston,
791 F.2d 97 (8th Cir. 1986) ..........................................................................11, 14
Butts v. Martin,
877 F.3d 571 (5th Cir. 2017) .............................................................................. 10
Calhoun v. DeTella,
319 F.3d 936 (7th Cir. 2003) ................................................................................ 6
Carter v. Allen,
940 F.3d 1233 (11th Cir. 2019) ........................................................................ 2, 5
Carter v. Hubert,
452 F. App’x 477 (5th Cir. 2011) ....................................................................... 10
Cavin v. Mich. Dep’t of Corr.,
927 F.3d 455 (6th Cir. 2019) ................................................................................ 8
Cooper v. Pate,
378 U.S. 546 (1964) .............................................................................................. 4
Crawford-El v. Britton,
523 U.S. 574 (1998) ............................................................................................ 13
iii

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Cruz v. Beto,
405 U.S. 319 (1972) .............................................................................................. 8
Davis v. District of Columbia,
158 F.3d 1342 (D.C. Cir. 1998) ............................................................................ 3
Dobbey v. Ill. Dep’t of Corr.,
574 F.3d 443 (7th Cir. 2009) .............................................................................. 11
Elrod v. Burns,
427 U.S. 347 (1976) .............................................................................................. 8
Ganther v. Ingle,
75 F.3d 207 (5th Cir. 1996) .................................................................................. 9
Gomez v. Vernon,
255 F.3d 1118 (9th Cir. 2001) ............................................................................ 12
Harris v. Garner,
190 F.3d 1279 (11th Cir. 1999) .......................................................................... 12
Harris v. Garner,
216 F.3d 970 (11th Cir. 2000) .............................................................................. 5
Hayes v. Long,
72 F.3d 70 (8th Cir. 1995) .................................................................................. 10
Hicks v. Ferrero,
241 F. App’x 595 (11th Cir. 2007) ..................................................................... 12
Ho Ah Kow v. Nunan,
12 F. Cas. 252 (C.C.D. Cal. 1879) ...................................................................... 12
Hutchins v. McDaniels,
512 F.3d 193 (5th Cir. 2007) ................................................................................ 6
Irving v. Dormire,
519 F.3d 441 (8th Cir. 2008) .............................................................................. 11
Jackson v. Raemisch,
726 F. Supp. 2d 991 (W.D. Wis. 2010) .............................................................. 10

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King v. Zamiara,
788 F.3d 207 (6th Cir. 2015) ................................................................................ 8
Kuperman v. Wrenn,
645 F.3d 69 (1st Cir. 2011) ................................................................................... 6
Martin v. Duffy,
858 F.3d 239 (4th Cir. 2017) .............................................................................. 12
McEachin v. McGuinnis,
357 F.3d 197 (2nd Cir. 2004) ............................................................................. 10
McElyea v. Babbitt,
833 F.2d 196 (9th Cir. 1987) ................................................................................ 9
Meyer v. Teslik,
411 F. Supp. 2d 983 (W.D. Wis. 2006) ................................................................ 9
Northington v. Jackson,
973 F.2d 1518 (10th Cir. 1992) .......................................................................... 11
Omar v. Casterline,
288 F. Supp. 2d 775 (W.D. La. 2003) ................................................................ 10
Preiser v. Rodriguez,
411 U.S. 475 (1973) ............................................................................................ 12
Priest v. Holbrook,
741 F. App’x 510 (9th Cir. 2018) ....................................................................... 10
Procunier v. Martinez,
416 U.S. 396 (1974) .............................................................................................. 7
Roman Catholic Diocese of Brooklyn v. Cuomo,
__ S. Ct. __, 2020 WL 6948354 (2020) ............................................................... 7
Rowe v. Shake,
196 F.3d 778 (7th Cir. 1999) ................................................................................ 8
Royal v. Kautzky,
375 F.3d 720 (8th Cir. 2004) ................................................................................ 6

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Salahuddin v. Mead,
174 F.3d 271 (2d Cir. 1999) ................................................................................. 9
Searles v. Van Bebber,
251 F.3d 869 (10th Cir. 2001) .......................................................................... 6, 9
Smith v. Fla. Dep’t of Corr.,
713 F.3d 1059 (11th Cir. 2013) .......................................................................... 11
Smith v. Villapando,
286 F. App’x 682 (11th Cir. 2008) ..................................................................... 12
Thompson v. Carter,
284 F.3d 411 (2d Cir. 2002) ................................................................................. 6
Thompson v. Holm,
809 F.3d 376 (7th Cir. 2016) ................................................................................ 9
Turner v. Safley,
482 U.S. 78 (1987) ................................................................................................ 3
Valdez v. City of New York,
2013 WL 8642169 (S.D.N.Y. 2013)..................................................................... 9
Williams v. Bitner,
455 F.3d 186 (3d Cir. 2006) ............................................................................... 10
Wolff v. McDonnell,
418 U.S. 539 (1974) .............................................................................................. 4
Statutes
42 U.S.C. § 1983 ............................................................................................5, 13, 14
42 U.S.C. § 1997a .................................................................................................... 13
42 U.S.C. § 1997e ..............................................................................................1, 2, 3
42 U.S.C. § 2000cc et seq. ......................................................................................... 5
Other Authorities
Hon. Thomas M. Cooley, Recent American Decisions, 18 Am. L. Reg.
676 (1879) ........................................................................................................... 12
vi

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Seth Kreimer, Exploring the Dark Matter of Judicial Review: A
Constitutional Census of the 1990s, 5 Wm. & Mary Bill Rts. J. 427
(1997) .................................................................................................................... 5
James E. Robertson, Psychological Injury and the Prison Litigation
Reform Act: A “Not Exactly” Equal Protection Analysis, 37 Harv.
J. on Legis. 105 (2000) ......................................................................................... 5
Jim Thomas, Prisoner Litigation: The Paradox of the Jailhouse
Lawyer (1988) ....................................................................................................... 5
Human Rights Watch Prison Project, Prisons in the United States of America,
available at https://www.hrw.org/legacy/advocacy/prisons/u-s.htm ................. 14
U.S. Courts website, www.uscourts.gov ................................................................... 6
U.S. Dep’t of Justice. Investigation of Alabama’s State Prisons for
Men, United States Attorney’s Offices for the Northern, Middle,
and Southern Districts of Alabama, 2020, available at
https://www.justice.gov/crt/case-document/file/1297031/download ...........13, 14

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SUMMARY OF ARGUMENT

A jury found that correctional officers repeatedly threatened to kill Mr.
Hoever in retaliation for filing grievances about institutional misconduct and
mistreatment, violating his First Amendment rights. Applying this Circuit’s
precedent, the trial court concluded he was barred from receiving punitive damages
by the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e. This wrongful
outcome not only deprives Mr. Hoever of just compensation for his injuries but
also allows countless abuses of citizens’ constitutional rights to go virtually
unchecked.
Current Eleventh Circuit precedent mistakenly interprets the PLRA to
require that an incarcerated person suffer physical injury to receive punitive
damages for a First Amendment violation. Every other circuit, however, has
concluded that a prisoner may recover punitive damages for a First Amendment
violation without having suffered physical injury. This is not only consistent with
the plain language of the statute but also reflects the fact that irrevocable harm
occurs when a citizen’s fundamental rights are violated.
Indeed, violations of First Amendment rights are unlikely to be accompanied
by physical injury, although such violations cause severe and irreparable harm.
This case aptly illustrates this point: correctional officers threatened Mr. Hoever
with extreme violence in retaliation for his speech about their abuse. But filing

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grievances is the sole mechanism for Mr. Hoever to protect any of his rights while
incarcerated. So while he may not have suffered physical injury from those
threats, he suffered substantial harm from the correctional officers’ attempts to
remove his only means for reporting abuse.
II.

ARGUMENT

Although the panel’s opinion correctly applied this Circuit’s earlier
precedent, that underlying case law is based on a misreading of the PLRA and a
misunderstanding of the nature of First Amendment injuries. Furthermore, broader
damages are especially important in cases where a prisoner faces retaliation for
expressing grievances because all reports regarding physical harm also necessarily
flow through that same process. In light of persuasive authority recognizing that
substantial harm does accompany non-physical injuries to First Amendment rights,
this Circuit should abrogate Al-Amin v. Smith, 637 F.3d 1192 (11th Cir. 2011), and
vindicate the First Amendment rights of its citizens.
A.

The Eleventh Circuit Stands Alone in Diminishing First
Amendment Harms

In every other circuit, citizens can seek compensatory damages or punitive
damages when rogue correctional officers intentionally and severely violate their
First Amendment rights. Compare Carter v. Allen, 940 F.3d 1233 (11th Cir.
2019), with Aref v. Lynch, 833 F.3d 242 (D.C. Cir. 2016). This Circuit is the only
circuit to interpret § 1997e(e) to bar such damages when the prisoner alleges no
2

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physical injury. See Al-Amin, 637 F.3d at 1999. Given the Supreme Court’s
admonition that “[p]rison walls do not form a barrier separating prison inmates
from the protections of the Constitution,” Turner v. Safley, 482 U.S. 78, 84 (1987),
this Circuit should reverse the panel’s earlier decision and overrule Al-Amin’s
mistaken holding.
Despite the Court’s admonition, an earlier panel in this Circuit eliminated
both compensatory and punitive damages for violations of prisoners’ First
Amendment rights. That outcome results from a misinterpretation of the PLRA’s
physical injury requirement and a misunderstanding of the purpose of punitive
damages. Most detrimentally, however, Al-Amin’s holding miscomprehends the
very real severity of First Amendment harms. First Amendment violations are not
likely to come accompanied by physical injury, and nominal damages do nothing
to deter the most egregious abuses of fundamental speech and religious freedoms.
Even the D.C. Circuit—which had held that § 1997e(e) generally bars
punitive damages absent physical injury, see Davis v. District of Columbia, 158
F.3d 1342 (D.C. Cir. 1998)—now expressly allows punitive damages for violations
of First Amendment rights. Aref, 833 F.3d at 266. In fact, that court also
recognized the implausible nature of the immunity implicitly afforded by AlAmin’s holding, “find[ing] it hard to believe that Congress intended to afford
virtual immunity to prison officials even when they commit blatant constitutional

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violations, as long as no physical blow is dealt.” Id. at 265 (emphasis added). As
that court reasoned, barring punitive damages for violations of constitutional rights
entirely removes the deterrent value of meritorious First Amendment claims,
affording “virtual immunity” to prison officials for egregious harms.
As explained below, incarcerated citizens regularly suffer severe injury to
their religious and speech rights without sustaining physical injury. And prisoners’
formal grievances are the primary means of addressing prisoner abuse, which is
otherwise shielded from public view. In other words, there are few ways outside
the formal grievance process for anyone to protect the constitutional rights of the
incarcerated. But eliminating punitive damages for violations of prisoners’ First
Amendment rights does more than substantially harm prisoners; it allows grave
constitutional violations by rogue correctional officers to go unchecked and
potentially unnoticed. Mr. Hoever’s case particularly illustrates this point: AlAmin’s holding led to the rejection of punitive damages for his meritorious claims
despite the clear need to deter the blatant misconduct that occurred.
B.

Allowing Punitive Damages Will Improve Access to Justice
Without Creating “A Flood of Litigation”

The Supreme Court has long held that “[t]here is no iron curtain drawn
between the Constitution and the prisons of this country.” Wolff v. McDonnell,
418 U.S. 539, 555 (1974). Among the constitutional rights a prisoner retains,
access to the courts remains one of the most vital. See Cooper v. Pate, 378 U.S.
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546 (1964) (state prisoner may pursue a claim in federal court for a violation of
constitutional rights under §1983). Although the PLRA does seek to bar frivolous
litigation, its purpose was never to bar recovery for potentially meritorious claims.
In fact, Congress reaffirmed its commitment to protecting First Amendment rights
in prison when it later passed the Religious Land Use and Institutionalized Persons
Act, 42 U.S.C. § 2000cc et seq. Nonetheless, this Circuit’s earlier interpretation of
the PLRA merely focuses on “stem[ming] the flood of prisoner lawsuits in federal
court.” See generally Carter, 940 F.3d at 1237 (quoting Harris v. Garner, 216
F.3d 970, 972 (11th Cir. 2000)). But such concerns over a “flood” of prisoner
litigation are wholly unfounded.
Although prisoner civil rights lawsuits understandably increased in the years
after the Court began recognizing prisoners’ rights under § 1983,1 courts have not
seen a similar increase in cases filed when punitive damages are allowed for civil

Jim Thomas, Prisoner Litigation: The Paradox of the Jailhouse Lawyer, 110
(1988). This increase in litigation must also be understood in the context of a
rapidly increasing prison population. See James E. Robertson, Psychological
Injury and the Prison Litigation Reform Act: A “Not Exactly” Equal Protection
Analysis, 37 Harv. J. on Legis. 105, 142 (2000) (noting that the “explosion” in
prison litigation was due to rapid growth of the prison population, while the rate of
filings per 1000 inmates actually decreased); see also Seth Kreimer, Exploring the
Dark Matter of Judicial Review: A Constitutional Census of the 1990s, 5 Wm. &
Mary Bill Rts. J. 427, 485 (1997) (noting that the overall rate of civil rights
litigation per prisoner remained approximately the same during the 1980s and
1990s).
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rights claims. Analyzing publicly available data from the U.S. Courts,2 there is no
evidence that this Circuit’s inmates would become more litigious if this Court
overruled Al-Amin. In circuits that have considered the issue, the number of “civil
rights” and “prison conditions” cases filed by prisoners continues to fluctuate over
time. As shown pictographically in the chart below, there is no association
between a Circuit court’s3 decision regarding availability of punitive damages for
constitutional claims without physical injury and the subsequent number of
prisoner lawsuits filed. Simply put, there is no reason to suspect a sudden flood of
litigation if this Circuit were to correct course and join the majority of other
circuits.

Data compiled from the U.S. Courts website, www.uscourts.gov, Statistics &
Reports, Data Tables, reviewing the “Civil Federal Judicial Caseload Statistics”
table (C-3) and analyzing changes in the number of “prison civil rights” and
“prison conditions” cases in the “prisoner petitions” category.
3

The relevant points in each circuit to consider the issue are as follows: Aref, 833
F.3d at 265; Kuperman v. Wrenn, 645 F.3d 69, 73 & n.5 (1st Cir. 2011); Hutchins
v. McDaniels, 512 F.3d 193, 198 (5th Cir. 2007); Royal v. Kautzky, 375 F.3d 720,
723 (8th Cir. 2004); Calhoun v. DeTella, 319 F.3d 936, 941-42 (7th Cir. 2003);
Thompson v. Carter, 284 F.3d 411, 418 (2d Cir. 2002); Searles v. Van Bebber, 251
F.3d 869, 881 (10th Cir. 2001); Allah v. Al-Hafeez, 226 F.3d 247, 251-52 (3d Cir.
2000).
6

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Violation of Citizens’ First Amendment Rights Involves
Irrevocable Harm

“A prisoner does not shed such basic First Amendment rights at the prison
gate. Rather, he ‘retains all the rights of an ordinary citizen except those expressly,
or by necessary implication, taken from him by law.’” Procunier v. Martinez, 416
U.S. 396, 422–23 (1974) (citations omitted). Indeed, prisoners’ First Amendment
rights can be violated in ways that cause substantial and irrevocable harm. As the
Supreme Court recently reaffirmed, “[t]he loss of First Amendment freedoms, for
even minimal periods of time, unquestionably constitutes irreparable injury.”
Roman Catholic Diocese of Brooklyn v. Cuomo, __ S. Ct. __, 2020 WL 6948354,

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at *3 (2020) (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976)).4 This Circuit’s
earlier misreading of the PLRA allows those harms to go unchecked and ignores
the reality that punitive damages are often the only tool available to deter such
injuries.
In addition to First Amendment speech rights, incarcerated citizens’
religious rights may be retaliated and discriminated against with racist
undertones. Religious groups can be actively oppressed and restricted from using
prison facilities with dire consequences for nonconformity, even if such harmful
consequences are not “physical” per se. See, e.g., Cruz v. Beto, 405 U.S. 319, 319
(1972) (prisoner “placed in solitary confinement on a diet of bread and water for
two weeks, without access to newspapers, magazines, or other sources of news” for
sharing his Buddhist religious materials);5 Cavin v. Mich. Dep’t of Corr., 927 F.3d

In fact, other circuits have determined that the deprivation of First Amendment
rights entitles a plaintiff to judicial relief wholly aside from any physical, mental,
or emotional injury. See, e.g., King v. Zamiara, 788 F.3d 207, 212 (6th Cir. 2015)
(citing cases and holding that “deprivations of First Amendment rights are
themselves injuries, apart from any mental, emotional, or physical injury that
might also arise from the deprivation”); Rowe v. Shake, 196 F.3d 778, 781–82 (7th
Cir. 1999).
4

Although some plaintiffs eschew settlement in order to prove their allegations,
e.g. Arroyo Lopez v. Nuttall, 25 F. Supp. 2d 407 (S.D.N.Y. 1998), indigent pro se
prisoners often do not have the resources to engage in prolonged litigation. Thus,
while some of the cases amici cite may have resolved at earlier stages of
litigation—or even before the PLRA was enacted—those are identified as
emblematic of possible institutional abuses regarding First Amendment rights.
Punitive damages would only be available in meritorious cases where, as here, a
5

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455, 458 (6th Cir. 2019) (discrimination against inmate’s religious ceremonies,
holidays, and practices); Salahuddin v. Mead, 174 F.3d 271, 273 (2d Cir. 1999)
(inmate denied access to chaplain on multiple occasions under pretense); Ganther
v. Ingle, 75 F.3d 207, 209 (5th Cir. 1996) (denying religious group access to
facilities by “citing a prison policy that the chapel only be used for distinct
religions, rather than distinct denominations within religions”); Meyer v. Teslik,
411 F. Supp. 2d 983, 988 (W.D. Wis. 2006) (inmate denied access to Native
American religious ceremonies and threatened with further retaliation).
Most perniciously for their right to free exercise of religion, however,
incarcerated citizens can have their own faith used against them as part of the
misconduct. E.g. Valdez v. City of New York, 2013 WL 8642169, at *12 (S.D.N.Y.
2013) (inmate labeled as a gang member based on his practice of Catholic religion,
including going to Mass and keeping a personal Bible). Already deprived of many
other rights, malfeasant correctional officers further citizens’ humiliation by also:
 depriving prisoners of religious foods to force them to violate their religious
beliefs, see, e.g., Thompson v. Holm, 809 F.3d 376, 380 (7th Cir. 2016);
Searles, 251 F.3d at 873; McElyea v. Babbitt, 833 F.2d 196, 200 (9th Cir.
1987);
 intentionally disrupting prayer, McEachin v. McGuinnis, 357 F.3d 197, 204–
05 (2nd Cir. 2004); Arroyo Lopez, 25 F. Supp. 2d at 408–09;

factfinder determines that a defendant violated a prisoner’s First Amendment
rights.
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 purposely forcing incarcerated citizens to desecrate themselves by acting in
contravention of their religious beliefs, see, e.g., Williams v. Bitner, 455 F.3d
186, 188 (3d Cir. 2006); Hayes v. Long, 72 F.3d 70, 74 (8th Cir. 1995);
Omar v. Casterline, 288 F. Supp. 2d 775, 781–82 (W.D. La. 2003); and
 intentionally losing, confiscating, or stealing sacred religious items
necessary for prisoners’ worship, e.g., Priest v. Holbrook, 741 F. App’x 510
(9th Cir. 2018) (federally controlled eagle feathers); Carter v. Hubert, 452 F.
App’x 477, 479 (5th Cir. 2011) (inmate’s Bible and other religious
pamphlets).
Prisoners can also be forced to decide between observing their faith or
facing further discrimination. See, e.g., Butts v. Martin, 877 F.3d 571, 585 (5th
Cir. 2017) (officer forced Jewish prisoner to choose between eating a meal and
wearing his yarmulke); Jackson v. Raemisch, 726 F. Supp. 2d 991, 995 (W.D. Wis.
2010) (officer told inmate that “his only options were to refrain from praying at
work or to quit his job”). Although these violations of religious freedoms leave no
physical scars, the damage to one’s liberty and fundamental religious rights is
severe. Individuals in this nation have a right to their own sincere beliefs without
degradation from government officials. Punitive damages for these injuries are not
only just but necessary to deter these kinds of intentional blatant violations of
constitutional rights.
D.

Defendants’ Violations of Mr. Hoever’s Right to Expression
Caused Irrevocable Harm

Like Mr. Hoever’s case, our nation’s case law is replete with discussions of
correctional officers’ retaliatory threats of physical violence that leave no physical

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injury. See Dobbey v. Ill. Dep’t of Corr., 574 F.3d 443, 446 (7th Cir. 2009)
(correctional officer hung a noose in front of black prisoners); Irving v. Dormire,
519 F.3d 441, 449–50 (8th Cir. 2008) (correctional officer threatened to kill
prisoner, offered bounty and weapons to others); Bruce v. Ylst, 351 F.3d 1283,
1289 (9th Cir. 2003); Northington v. Jackson, 973 F.2d 1518, 1524 (10th Cir.
1992) (officers “surprised and threatened to kill him” by “plac[ing] a revolver to
[his] head and threaten[ing] to pull the trigger”). As a result, all other circuits have
found that prisoners may recover damages for proven injuries because “a wanton
act of cruelty … was brutal despite the fact that it resulted in no measurable
physical injury to the prisoner.” Burton v. Livingston, 791 F.2d 97, 100 (8th Cir.
1986) (correctional officer pointed gun at black prisoner, cocked it, called him
infamous slur, and repeatedly threatened to shoot him).
Less straightforward forms of retaliatory abuse are far more difficult to
detect, report, and deter. Correctional officers can “non-physically” retaliate
against First Amendment rights in ways that are meant to physically restrict or
control prisoners—resulting in other forms of non-physical harms. Examples
include:
 repeatedly transferring prisoners to prevent them from filing grievances or
accessing the courts, see, e.g., Smith v. Fla. Dep’t of Corr., 713 F.3d 1059,
1065 (11th Cir. 2013);

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 making false allegations or filing false disciplinary reports to restrict other
liberties, see, e.g., Gomez v. Vernon, 255 F.3d 1118, 1127 (9th Cir. 2001);
Hicks v. Ferrero, 241 F. App’x 595, 598 (11th Cir. 2007); and
 placing an incarcerated citizen in solitary confinement to cut off all outside
contact, see, e.g., Martin v. Duffy, 858 F.3d 239, 250 (4th Cir. 2017)
(prisoner “remained in segregation for 110 days” as part of retaliation);
Smith v. Villapando, 286 F. App’x 682, 685 (11th Cir. 2008) (retaliatory
allegations resulting in disciplinary confinement).
Retaliation against expression of grievances is arguably the most impactful
and harmful First Amendment violation a prisoner can suffer. Without access to
the grievance process, a prisoner is entirely at the whims of reprobate correctional
officers. See Ho Ah Kow v. Nunan, 12 F. Cas. 252, 254 n.2 (C.C.D. Cal. 1879)
(“The common impression that a prisoner under sentence is pretty much at the
arbitrary disposal of his keeper is not only exceedingly erroneous, but it is one that
leads to many abuses.”) (quoting Hon. Thomas M. Cooley, Recent American
Decisions, 18 Am. L. Reg. 676, 685 (1879)). Retaliation therefore robs a prisoner
of due process because it actually does eliminate those “avenues of relief” relied
upon by the Court in Al-Amin. See Al-Amin, 637 F.3d at 1196 (quoting Harris v.
Garner, 190 F.3d 1279, 1289 (11th Cir. 1999)). “[F]or state prisoners, eating,
sleeping, dressing, washing, working, and playing are all done under the watchful
eye of the State.” Preiser v. Rodriguez, 411 U.S. 475, 492 (1973). Given this
reality, it is vital that a prisoner be able to bring a grievance against the rogue
correctional officers who control virtually every aspect of his life.

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Recognizing that “the First Amendment bars retaliation for protected
speech,” Crawford-El v. Britton, 523 U.S. 574, 592 (1998), the circuits
unanimously permit prisoners to bring § 1983 claims against corrections officers
for retaliation in response to the filing of formal grievances. Prisoner grievances
are also necessary because there is little oversight of prisoner treatment.
Institutional issues at the Alabama Department of Corrections perfectly illustrate
this problem. In 2020, the Department of Justice (“DOJ”) found that “in
Alabama’s prisons, cruel treatment of prisoners by staff is common and deescalation techniques are regularly ignored.”6 Other states within the Circuit, such
as Georgia, have also been found to have “egregious conditions” in violation of
prisoner rights.7 Most concerning, the DOJ report on state prison conditions in
Alabama found that “use of force investigations are frequently inadequate”
because correctional officers rarely document the investigative steps taken, list
potential witnesses, identify individuals interviewed, or conduct any investigation
at all.8

U.S. Dep’t of Justice, Investigation of Alabama’s State Prisons for Men (“2020
DOJ Report”), 22, United States Attorney’s Offices for the Northern, Middle, and
Southern Districts of Alabama, 2020, available at https://www.justice.gov/crt/casedocument/file/1297031/download.
7

See Human Rights Watch Prison Project, Prisons in the United States of America,
available at https://www.hrw.org/legacy/advocacy/prisons/u-s.htm.
8

2020 DOJ Report, supra at 16-19.
13

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The filing of formal grievances by prisoners is a key component of prison
oversight because it shines light on the misconduct of rogue correctional officers,
exhausts other necessary remedies, and allows information regarding egregious
abuses to reach beyond the prison walls and before a court. The need for punitive
damages is accentuated in cases like this, where it is proven that officers threatened
a prisoner in retaliation for filing grievances. Nominal damages are simply
insufficient to deter the harm suffered by the violation of prisoners’ First
Amendment rights.
III.

CONCLUSION

Because “[t]he day has passed when an inmate must show a court the scars
of torture in order to make out a complaint under § 1983,” Burton, 791 F.2d at 100,
and such a conflicted reading of the PLRA has been dismissed by all other circuits,
this En Banc Court should abrogate Al-Amin and vindicate the First Amendment
rights of its incarcerated citizens.
Respectfully submitted this 2nd day of December, 2020.
s/ Caesar Kalinowski IV
Bruce E.H. Johnson
Caesar Kalinowski IV
Jordan Harris
DAVIS WRIGHT TREMAINE LLP
920 Fifth Avenue, Suite 3300
Seattle, Washington 98104-1610
Tel: (206) 757-8232
Email: brucejohnson@dwt.com
caesarkalinowski@dwt.com
14

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jordanharris@dwt.com
Sean J. Young
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION OF
GEORGIA
PO Box 77208
Atlanta, GA 33057
Tel: (770) 303-8111
Email: syoung@acluga.org
Counsel for Amici Curiae

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APPENDIX A
ADDITIONAL COUNSEL FOR AMICI CURIAE
Darcy M. Meals
CENTER FOR ACCESS
TO JUSTICE
85 Park Place NE
Atlanta, Georgia 30303
Tel: (404) 413-9253
Email: dmeals@gsu.edu

Clark M. Neily III
Jay R. Schweikert
CATO INSTITUTE
1000 Mass. Ave. N.W.
Washington, DC 20001
Tel: (202) 218-4631
Email: cneily@cato.org

Michael Pepson
AMERICANS FOR PROSPERITY
FOUNDATION
1310 North Courthouse Road,
7th Floor
Arlington, Virginia 22201
Tel: (571) 329-4529
Email: mpepson@afphq.org

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CERTIFICATE OF COMPLIANCE
Pursuant to Fed. R. App. P. 29 and 35 and 11th Cir. R. 35, I hereby certify
that:
1.

Amici state that pursuant to Fed. R. App. P. 29(a)(4)(E), no party’s

counsel authored the brief in whole or in part; no party or party’s counsel
contributed money intended to fund preparing or submitting the brief; and no
person, other than amici, their members or their counsel, contributed money
intended to fund preparing or submitting the brief.
2.

This brief complies with the type-volume limitations of Fed. R. App.

P. 29(a)(5) and because this brief contains 3,699 words, excluding the parts of the
brief exempted by 11th Cir. R. 35-1.
3.

This brief complies with the typeface requirements of Fed. R. App. P.

32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this
brief has been prepared in a proportionally spaced typeface using Microsoft Word
in 14-point Times New Roman typeface.

Dated: December 2, 2020
s/ Bruce Johnson
Bruce Johnson

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CERTIFICATE OF SERVICE
I hereby certify that on December 2, 2020, I electronically filed the
foregoing Brief of American Civil Liberties Union, American Civil Liberties
Union of Georgia, Americans for Prosperity Foundation, Cato Institute, The Center
for Access to Justice, Florida Justice Institute, Human Rights Defense Center, and
Southern Center for Human Rights in Support of Plaintiff-Cross Appellant Hoever
with the Clerk of the Court for the United States Court of Appeals for the Eleventh
Circuit using the CM/ECF system. I certify that all participants in the case are
registered CM/ECF users and that service will be accomplished by the CM/ECF
system.

Dated: December 2, 2020
s/ Bruce Johnson
Bruce Johnson