406 B.R. 123 (2009)
In re ECOVENTURE WIGGINS PASS, LTD., Aqua at Pelican Isle Yacht Club Marina, Inc., Pelican Isle Yacht Club Partners, Ltd., Debtors.
Nos. 9:08-bk-9197-ALP, 9:08-bk-9198-ALP, 9:08-bk-9199-ALP.
United States Bankruptcy Court, M.D. Florida, Fort Myers Division.
May 13, 2009.
*124 Daniel R. Fogarty, Harley E. Riedel, Stephen R. Leslie, Stichter, Riedel, Blain & Prosser, PA, Tampa, FL, for Debtors.

ORDER ON (1) DEBTOR'S MOTION FOR SUMMARY JUDGMENT ON MOTION FOR ORDER AUTHORIZING ASSUMPTION AND SALE PURSUANT TO CONTRACTS FOR PURCHASE OF CONDOMINIUM UNITS (SIEGFRIED), AND (2) MOTION FOR SUMMARY JUDGMENT BY STEVEN SIEGFRIED
ALEXANDER L. PASKAY, Bankruptcy Judge.
THIS CASE came before the Court for hearing to consider (1) the Debtor's Motion *125 for Summary Judgment on Motion for Order Authorizing Assumption and Sale Pursuant to Contracts for Purchase of Condominium Units (Doc. 306), and (2) the Motion for Summary Judgment filed by Steven Siegfried (Doc. 352).
In its Motion, the Debtor requests authority to assume a Purchase and Sale Agreement that was entered by Ecoventure Wiggins Pass, Ltd., as the Seller, and Steven Siegfried (Siegfried), as the Buyer. The Purchase and Sale Agreement relates to Unit 708 of a condominium development known as Aqua at Pelican Isle Yacht Club in Naples, Florida.
In his Motion for Summary Judgment, Siegfried asserts that he terminated the Purchase and Sale Agreement on April 24, 2008, prior to the filing of the Debtor's bankruptcy Petition. Consequently, Siegfried contends that the Purchase and Sale Agreement was not executory as of the Petition date, and therefore is not assumable by the Debtor.
Siegfried further asserts that he terminated the Purchase and Sale Agreement in accordance with the terms of an Agreement Regarding Accommodation Payment and Termination of Purchase and Sale Agreement (the Accommodation Agreement) that was executed simultaneously with the execution of the Purchase and Sale Agreement. According to Siegfried, the Purchase and Sale Agreement and the Accommodation Agreement constitute a single, integrated agreement between the parties. (Doc. 319, ¶ 7). Even if the Purchase and Sale Agreement had not been terminated prepetition, therefore, Siegfried asserts that the Debtor may not sever and assume only a portion of the parties' entire agreement pursuant to § 365 of the Bankruptcy Code.

Background
The Debtor is the developer and owner of a luxury waterfront condominium complex known as the "Aqua at Pelican Isle Yacht Club" in Naples, Florida. The complex includes a residential tower, together with an adjacent marina and dock facility. Financing for the project was initially provided by a group of lenders led by Regions Bank, which loaned approximately $100 million to the Debtor to develop and construct the condominium units and facilities.
On February 26, 2007, while the project was in development, the Debtor entered into a Purchase and Sale Agreement with Siegfried. The Agreement provided in part:
1. Siegfried would purchase condominium Unit 708 from the Debtor for the purchase price of $2,650,000.00. (¶¶ 1, 2). The deposit to be paid by Siegfried was $530,000.00 (20% of the purchase price).
2. The Debtor was subject to a pre-sale requirement by its lender, and could unilaterally terminate the agreement if it was unable to meet the pre-sale requirement. (¶ 28).
3. Siegfried was entering into the agreement "with the full intention of complying" with each obligation thereunder, including the obligation to close on the purchase of Unit 708. Siegfried further represented that the Debtor had not made any statement indicating that Siegfried would not be obligated to close the purchase. (¶ 37).
It is undisputed that Siegfried remitted a deposit in the amount of $530,000.00 to the Debtor or the designated Escrow Agent in accordance with the Purchase and Sale Agreement.
On the same day that the parties executed the Purchase and Sale Agreement, they also executed an Agreement Regarding Accommodation Payment and Termination of Purchase and Sale Agreement. The Accommodation Agreement expressly provides *126 that the Purchase and Sale Agreement is attached to the Agreement and made a part thereof. (Recitals, p. 1).
The Accommodation Agreement further provides in part:
1. The Debtor agrees to pay Siegfried interest on his deposit at the rate of 25% per annum. (¶ 3). If the sale to Siegfried is closed, the purchase price will be reduced by the amount of the "accommodation payment." (¶¶ 3, 6).
2. The Debtor will continue to market Unit 708, and will use diligent efforts to replace Siegfried's Purchase and Sale Agreement with an agreement to sell the unit to a third party. In fact, the Debtor is obligated to accept any offer from a third party that is equal to or greater than the purchase price payable under Siegfried's Purchase and Sale Agreement. (¶ 4).
3. If the pre-sale contingency required by the Debtor's lender is satisfied, the Debtor may terminate Siegfried's Purchase and Sale Agreement. (¶ 5).
4. Siegfried has the right to terminate the Purchase and Sale Agreement at any time after one year from the effective date of the Agreement. (¶ 8).
5. The Accommodation Agreement constitutes the entire agreement among the parties, and supersedes all prior agreements among the parties with respect to the same subject matter. (¶ 12).
Additionally, the Accommodation Agreement provides that its terms are confidential, and that Siegfried agrees not to disclose such terms without the Debtor's consent. (¶ 23).
On April 24, 2008, Siegfried provided written notification to the Debtor of his election to terminate the Purchase and Sale Agreement pursuant to Paragraph 8 of the Accommodation Agreement.
On June 24, 2008, the Debtor filed its Petition under Chapter 11 of the Bankruptcy Code. The condominium complex was not completely constructed as of the Petition date. On July 26, 2008, the Court entered an Order authorizing the Debtor to obtain post-petition financing from Cypress Lending Group, Ltd. in the amount of $26.1 million. (Doc. 67). The purpose of the post-petition financing was to enable the Debtor to complete the construction of the project.
In December of 2008, approximately six months after the Chapter 11 Petition had been filed, the Debtor completed the construction of a residential tower. A certificate of occupancy was granted for the tower on December 31, 2008.

Discussion
In its Motion for Summary Judgment, the Debtor asserts that, for "the avoidance of doubt, it is the standard form Purchase and Sale Agreements that the Debtors desire to assume." (Doc. 306, p. 11). The Debtor is not seeking to assume the Accommodation Agreement.
Siegfried contends, however, that he terminated the Purchase and Sale Agreement prior to the filing of the Debtor's bankruptcy Petition in accordance with the express terms of the Accommodation Agreement. Consequently, Siegfried asserts that the Purchase and Sale Agreement was not executory as of the Petition date, and therefore is not assumable under § 365 of the Bankruptcy Code.
Alternatively, even if the Purchase and Sale Agreement was not effectively terminated prepetition, Siegfried asserts that the Purchase and Sale Agreement and the Accommodation Agreement constitute a single, integrated contract between the parties. According to Siegfried, therefore, the Purchase and Sale Agreement cannot *127 be severed and separately assumed by the Debtor. (Doc. 319, ¶ 7).
The Debtor and Siegfried both contend that they are entitled to the entry of a summary judgment in their favor. Generally, a summary judgment may be entered if "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); Fed.R.Bankr.P. 7056, 9014(c). The moving party has the burden of establishing its right to summary judgment. In re Transit Group, Inc., 332 B.R. 45, 51 (Bankr.M.D.Fla.2005) (citations omitted).

A. The Debtor's right to assume the Purchase and Sale Agreement
The Debtor seeks to assume the Purchase and Sale Agreement pursuant to § 365(a) of the Bankruptcy Code. Section 365(a) provides:
11 USC § 365. Executory contracts and unexpired leases
(a) Except as provided in sections 765 and 766 of this title and in subsections (b), (c), and (d) of this section, the trustee, subject to the court's approval, may assume or reject any executory contract or unexpired lease of the debtor.
11 U.S.C. § 365(a). The section allows a debtor "to maximize the value of the debtor's estate by assuming executory contracts that benefit the estate and rejecting those that do not." In re Seven Hills, Inc., 2009 WL 824753, at *5 (Bankr. D.N.J.).
Generally, courts have found that prepetition contracts for the sale of real property by a debtor are executory for purposes of § 365 of the Bankruptcy Code. In re Chira, 367 B.R. 888, 895 (S.D.Fla.2007)(citing In re General Development Corp., 84 F.3d 1364, 1371 (11th Cir.1996)).
Where the sale contract was validly terminated before the bankruptcy case was filed, however, it is fundamental that the contract may not be resurrected and assumed by the debtor. In re Seven Hills, Inc., 2009 WL 824753, at *5. See also In re Eagle Creek Subdivision, LLC, 397 B.R. 758, 761-63 (Bankr.E.D.N.C.2008) (the debtor could not assume contracts to sell real estate that had been terminated prior to the filing of the bankruptcy petition).
In this case, paragraph 8 of the Accommodation Agreement provides in part:
8. Termination of Purchase Contract. Notwithstanding anything to the contrary contained in this Agreement or the Purchase Contract, Purchaser shall have the right to terminate the Purchase Contract upon written notice delivered to Seller at any time after the expiration of one (1) year from the effective date of the Purchase Contract. Upon such termination of the Purchase Contract by the Purchaser, the Accommodation Payment will stop accruing interest, and Seller shall (i) cause the Escrow Agent to immediately release and return Earnest Money Deposit to Purchaser and (ii) pay the Accommodation Payment to Purchaser within thirty (30) days of termination of the Purchase Contract, whereupon the parties will be released from all further liability and obligations under this Agreement, other than those specific obligations that survive termination....
(Emphasis supplied). The Accommodation Agreement and the Purchase and Sale Agreement were both signed by the Debtor and Siegfried on February 26, 2007.
On April 24, 2008, more than one year after the execution of the Purchase and Sale Agreement, Siegfried sent a letter to the Debtor stating that he elected to terminate *128 the Purchase and Sale Agreement pursuant to his rights under the terms of the Accommodation Agreement. (Doc. 352, Exhibit C).
The Debtor's Chapter 11 Petition was filed on June 24, 2008, approximately two months after Siegfried sent his notice of termination to the Debtor.
The Debtor suggests that the Purchase and Sale Agreement was not validly terminated, because paragraph 8 of the Accommodation Agreement only provides for a release of Siegfried's obligations under the Accommodation Agreement, but not for a release of his obligation to close under the Purchase and Sale Agreement. (Transcript, pp. 53-60). Reading paragraph 8 in its entirety, however, it is clear that Siegfried had the right to terminate the Purchase and Sale Agreement at any time after one year following the date of the agreement. The subsequent language in paragraph 8 regarding the parties' mutual releases relates only to settlement of the parties' respective liabilities under the Accommodation Agreement after Siegfried's deposit has been returned and the Accommodation Payment has been paid.
The Purchase and Sale Agreement between the Debtor and Siegfried was effectively terminated prior to the filing of the bankruptcy Petition. Accordingly, the Purchase and Sale Agreement was not an executory contract as of the date of the Petition, and is not assumable by the Debtor under § 365(a) of the Bankruptcy Code. In re EBC I, Inc., 356 B.R. 631, 638 (Bankr.D.Del.2006).

B. The Purchase and Sale Agreement and the Accommodation Agreement as a single, integrated agreement between the parties
Even if the Purchase and Sale Agreement had not been terminated prepetition, Siegfried asserts that the Debtor's Motion to Assume the Purchase and Sale Agreement should be denied on other grounds.
According to Siegfried, the Purchase and Sale Agreement and Accommodation Agreement constitute a single, integrated contract between the parties. (Doc. 319, ¶ 7). Since the parties entered into one unified contract, Siegfried asserts that the Debtor must either assume or reject that contract in its entirety under § 365(a) of the Bankruptcy Code.
The Debtor acknowledges that it is required to "assume a contract in whole and not in part, accepting its benefits and burdens." (Doc. 306, p. 14). See also In re Beverage Canners International Corp., 255 B.R. 89, 95 (Bankr.S.D.Fla.2000) ("It is black letter law that an executory contract must be either assumed in its entirety, cum onere, or completely rejected.") (cited in In re Aneco Electrical Construction, Inc., 326 B.R. 197, 201 (Bankr.M.D.Fla. 2005)).
The Debtor asserts, however, that the Purchase and Sale Agreement and the Accommodation Agreement are divisible, severable agreements, and that it may therefore separately assume or reject the individual contracts. (Doc. 306, p. 14).
The severability of an agreement is generally determined according to state law. In re Aneco Electrical Construction, Inc., 326 B.R. at 201(citing In re Adelphia Business Solutions, Inc., 322 B.R. 51, 54 n. 10 (Bankr.S.D.N.Y.2005) and In re Wolflin Oil, L.L.C., 318 B.R. 392, 397 (Bankr. N.D.Tex.2004)).
The Purchase and Sale Agreement and the Accommodation Agreement that are at issue in this case both provide that they shall be governed by Florida law. (Purchase *129 and Sale Agreement, ¶ 20; Accommodation Agreement, ¶ 16).
"Under Florida law, where two or more documents are executed by the same parties, at or near the same time and concerning the same transaction or subject matter, the documents are generally construed together as a single contract." Bragg v. Bill Heard Chevrolet, Inc.-Plant City, 374 F.3d 1060, 1067 (11th Cir.2004) (citing Clayton v. Howard Johnson Franchise Systems, Inc., 954 F.2d 645, 648 (11th Cir.1992) and Quix Snaxx, Inc. v. Sorensen, 710 So.2d 152, 153 (Fla. 3d DCA 1998)).
In this case, the Purchase and Sale Agreement and the Accommodation Agreement were executed by the Debtor as the Seller, and by Siegfried as the Buyer. Both documents were executed on the same date, February 26, 2007. The Purchase and Sale Agreement relates to the sale of Unit 708 of a condominium development known as Aqua at Pelican Isle Yacht Club. The Accommodation Agreement expressly provides that a copy of the Purchase and Sale Agreement is attached to the Accommodation Agreement and made a part thereof. The Accommodation Agreement also refers to Siegfried's purchase of Unit 708 of the condominium project, and provides that its terms represent an accommodation to Siegfried for entering into the Purchase and Sale Agreement. (Recitals, p. 1).
Under these circumstances, the Court finds that the Purchase and Sale Agreement and the Accommodation Agreement should be construed as a single contract under Florida law. They were executed at the same time by the same parties, and it is clear from the documents that they were intended to represent a single contract setting forth the parties' agreement regarding Unit 708 of the condominium development. Mnemonics, Inc. v. Max Davis Associates, Inc., 808 So.2d 1278, 1280 (Fla. 5th DCA 2002); Quix Snaxx, Inc. v. Sorensen, 710 So.2d at 153-54.
Additionally, both parties rely on the decision of the Eleventh Circuit Court of Appeals in In re Gardinier, Inc., 831 F.2d 974 (11th Cir.1987) as guidance for determining whether the Purchase and Sale Agreement and the Accommodation Agreement constitute two separate and divisible contracts, or whether they constitute a single, non-severable contract representing the total agreement between the parties.
In Gardinier, the issue was "whether an agreement to pay a brokerage commission, contained within the same document as a purchase and sale agreement, is a separate and distinct contract from the purchase and sale agreement." In re Gardinier, 831 F.2d at 974. The Court concluded that the brokerage agreement was separate from the purchase and sale agreement. Id. at 975. In Gardinier, the parties to the brokerage agreement (Gardinier and Kilgore) were different from the parties to the purchase and sale agreement (Gardinier and Burley), and "there was no consideration flowing between the broker and the buyer." Id. at 976. The obligations of the parties were not interrelated. Id. The two agreements were separate and distinct.
In evaluating the issue, the Court found that the parties' intention was the governing principle in deciding whether they made one contract or two, and that the parties' intention should be determined from the documents themselves, absent any ambiguity in the terms of the agreement. Id. at 976. The Court further found that the parties' intention was evidenced *130 by the nature and purpose of the agreements, the consideration for the agreements, and the interrelation of the obligations set forth in the agreements. Id.
The Court has applied the principles set forth in Gardinier to the documents in this case, and finds that the Purchase and Sale Agreement and the Accommodation Agreement constitute a single, non severable contract.
The Purchase and Sale Agreement provides that the Debtor will sell Unit 708 of Aqua at Pelican Isle Yacht Club to Siegfried for the total purchase price of $2,650,000.00. Siegfried paid an earnest money deposit in the amount of $530,000.00 to the Escrow Agent identified in the Purchase and Sale Agreement.
The Purchase and Sale Agreement contemplates a pre-sale of the condominium unit, before construction of the condominium is complete. The provisions indicating that the sale is a pre-sale include Paragraph 3 (the unit will be constructed according to specifications), Paragraph 4 (a portion of Siegfried's deposit may be used for construction), Paragraph 5 (the sale will close after the unit is substantially complete), Paragraph 9 (Siegfried may not cancel the Agreement because of construction delays), and Paragraph 25 (Siegfried will not interfere with construction workers on the site). Additionally, paragraph 28 acknowledges that the Debtor is subject to a pre-sale requirement by its lender, and provides that the Debtor may terminate the Purchase and Sale Agreement if it is unable to meet the pre-sale requirement.
The Purchase and Sale Agreement is attached as an exhibit and expressly "made part" of the Accommodation Agreement. (Recitals, p. 1).
The Accommodation Agreement provides that the Debtor will continue to market Unit 708, and will use diligent efforts to replace Siegfried's Purchase and Sale Agreement with a contract to sell the unit to a third party. (Recitals and ¶ 4).
The Accommodation Agreement also provides that the Debtor will pay Siegfried interest on his earnest money deposit at the rate of 25% per annum if the Purchase and Sale Agreement is terminated or, alternatively, the Debtor will deduct the "accommodation payment" from the purchase price if the sale to Siegfried is ultimately closed. (Recitals and ¶¶ 3, 6, 8). According to the Accommodation Agreement, the Debtor can terminate Siegfried's Purchase and Sale Agreement if a replacement contract is obtained or if the Debtor's pre-sale contingency is satisfied. (¶¶ 4, 5). Conversely, the Accommodation Agreement provides that Siegfried can terminate the Purchase and Sale Agreement at any time after one year from the contract date. (¶ 8).
It is clear from the terms of the contract that the parties intended to enter into a pre-sale of the unit to Siegfried, and that the pre-sale could be canceled upon the occurrence of any of the conditions set forth in the agreement. There is no indication in the Accommodation Agreement that it was intended to stand alone, independent of the Purchase and Sale Agreement. See In re Aneco Electrical Construction, Inc., 326 B.R. at 202. Instead, the obligation of Siegfried to pay the earnest money deposit pursuant to the Purchase and Sale Agreement, and the obligation of the Debtor to sell the unit to Siegfried or to "accommodate" him pursuant to the Accommodation Agreement, are mutually dependent and interrelated terms. Aneco, 326 B.R. at 202-03.
*131 The Purchase and Sale Agreement and the Accommodation Agreement constitute a single, integrated contract between the parties.

Conclusion
The matters before the Court are (1) the Debtor's Motion for Summary Judgment on its Motion to Assume a Purchase and Sale Agreement with Siegfried, and (2) Siegfried's Motion for Summary Judgment. In its Motion, the Debtor seeks to assume the Purchase and Sale Agreement with Siegfried, but not the Accommodation Agreement entered by the parties on the same date.
The Purchase and Sale Agreement was effectively terminated prior to the filing of the Debtor's bankruptcy Petition. Consequently, the Purchase and Sale Agreement was not executory as of the Petition date, and is therefore not assumable by the Debtor under § 365(a) of the Bankruptcy Code.
Additionally, the Purchase and Sale Agreement and the Accommodation Agreement constitute a single, integrated contract between the parties. Consequently, the Debtor may not sever the Purchase and Sale Agreement and assume only a portion of the parties' total agreement.
Accordingly:
IT IS ORDERED that:
1. The Debtor's Motion for Summary Judgment on Motion for Order Authorizing Assumption and Sale Pursuant to Contracts for Purchase of Condominium Units (Doc. 306) is denied.
2. The Motion for Summary Judgment filed by Steven Siegfried (Doc. 352) is granted to the extent that Steven Siegfried seeks a determination that the Debtor may not assume the Purchase and Sale Agreement.


    13-3156
    Ferran v. Office of the District Attorney

                              UNITED STATES COURT OF APPEALS
                                  FOR THE SECOND CIRCUIT

                                                SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

                  At a stated term of the United States Court of Appeals for the Second Circuit,
    held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of
    New York, on the 30th day of March, two thousand fifteen.

    PRESENT:
                PIERRE N. LEVAL,
                DEBRA ANN LIVINGSTON,
                       Circuit Judges,
                RICHARD K. EATON,*
                       Judge, U.S. Court of International Trade.
    _____________________________________
    Mark R. Ferran, Nadia Ferran,

                                  Plaintiffs-Appellants,
                        v.                                                     No. 13-3156

    Office of the District Attorney of the County of
    Rensselaer, Kenneth R. Bruno, in his individual
    and official capacity, Rensselaer County, Patricia
    DeAngelis, District Attorney, in her individual
    and official capacity,

                                  Defendants-Appellees,

    James Canfield, individually and in his capacity
    as Justice of the Supreme Court of the State of
    New York,
                          Defendant.
    _____________________________________

           * Judge Richard K. Eaton, of the United States Court of International Trade, sitting by
    designation.
FOR PLAINTIFFS-APPELLANTS: Mark R. Ferran, Nadia Ferran, pro se, Albany, NY.

FOR DEFENDANTS-APPELLEES: No appearance.

       Appeal from a judgment of the United States District Court for the Northern District of

New York (Hurd, J.; Hummel, M.J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

       Appellants Mark and Nadia Ferran, proceeding pro se, appeal the district court’s judgment

dismissing their 42 U.S.C. ' 1983 complaint for refusal to effect service of process. We assume

the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues

on appeal.

       We review a district court’s dismissal of a complaint for lack of timely service under Fed.

R. Civ. P. 4(m) for abuse of discretion. Meilleur v. Strong, 682 F.3d 56, 61 (2d Cir. 2012). “A

district court has abused its discretion if it has (1) based its ruling on an erroneous view of the law,

(2) made a clearly erroneous assessment of the evidence, or (3) rendered a decision that cannot be

located within the range of permissible decisions.” Lynch v. City of New York, 589 F.3d 94, 99

(2d Cir. 2009) (internal quotation marks omitted). “In the Rule 4(m) context, a district court

abuses its discretion when, among other things, it dismisses a complaint sua sponte for lack of

service without first giving notice to the plaintiff and providing an opportunity for her to show

good cause for the failure to effect timely service.” Meilleur, 682 F.3d at 61. We will not

overrule a dismissal for lack of service unless the appellant “advance[s] some colorable excuse for

neglect.” Id. (quoting Zapata v. City of New York, 502 F.3d 192, 198 (2d Cir. 2007)).

                                                   2
       Here, upon review, we conclude that the district court properly dismissed Appellants’

complaint without prejudice pursuant to Rule 4(m). Appellants acknowledge that they failed to

serve process and notified the district court of their refusal to serve process in the future. Further,

they have failed to advance a colorable justification. Appellants appear to argue that they did not

effect service of process because the district court did not sua sponte issue an order extending the

time to serve process, and that the district court’s failure to issue such an order meant that they did

not need to serve the complaint. That argument is without merit. While Rule 4(m) allows the

court to issue an order that service be made within a specified time if a defendant is not served

within 120 days after the complaint is filed, it does not require the court to issue such an order.

       We have considered all of Appellants’ remaining arguments and find them to be without

merit. Accordingly, we AFFIRM the judgment of the district court.

                                               FOR THE COURT:
                                               Catherine O=Hagan Wolfe, Clerk

                                                  3


249 F.Supp. 597 (1966)
GRANITE CHEMICAL CORPORATION, also known as Granite Chemical Company, a corporation duly organized and existing under the laws of the State of Massachusetts, Libellant,
v.
NORTHEAST COAL & DOCK CORPORATION, a Maine Corporation, and Kali-Transport Gesellschaft M.B.H. and Schulte & Bruns, both of the Federal Republic of Germany, Respondents.
No. 247.
United States District Court D. Maine, S. D.
January 18, 1966.
C. Daniel Ward, Portland, Me., for libellant.
Benjamin Thompson, Thomas R. McNaboe, Portland, Me., Albert C. Blanchard, Bangor, Me., for respondents.
GIGNOUX, District Judge.
This is a libel in personam to recover for damage to a cargo of saltcake which was shipped from Bremen, Germany, to Bucksport, Maine, in March 1964 aboard the SS ELISABETH SCHULTE, a vessel owned by respondent Schulte & Bruns and under charter to respondent Kali-Transport Gesellschaft M.B.H. The libel was filed on June 30, 1965. On July 1, 1965, a Deputy United States Marshal attempted service upon Schulte & Bruns by serving a citation with a copy of the libel upon Chase, Leavitt & Co., a general steamship agency in Portland, Maine. Schulte & Bruns has filed a special appearance and motion to quash the service on the ground that it is a foreign corporation and at the time of service was doing no business in the State of Maine and had no agent in this state upon whom service could be made.
From the record and uncontroverted affidavit submitted in support of the motion, it appears that Schulte & Bruns is a corporation organized under the laws of *598 the Federal Republic of Germany, with its principal place of business at Hamburg, Germany. It maintains no office, has no employees, and owns no property, bank account or other assets, within the State of Maine. It has not solicited, transacted or obtained any freight or passenger business in Maine, and has never designated any agent upon whom service of process may be had in Maine. In the last five years the only vessel owned or operated by Schulte & Bruns which has visited a Maine port was the SS ELISABETH SCHULTE in March 1964. By the charter party covering the shipment of saltcake involved in this litigation, Chase, Leavitt & Co. was designated by the ship's charterer, the respondent Kali, as husbanding agent for the SS ELISABETH SCHULTE for the specific call at the port of Bucksport in March 1964. As such, Chase, Leavitt & Co. arranged for pilots entering and clearing the port and performed other normal husbanding services. Schulte & Bruns has never authorized Chase, Leavitt & Co. to accept service of process on its behalf, and there has never been any agreement, written or otherwise, providing for any continuing agency relationship between Schulte & Bruns and Chase, Leavitt & Co.
From the foregoing recital of the facts, it is clear that on July 1, 1965, when the attempted service was made in this case, there was no agency relationship in existence between Schulte & Bruns and Chase, Leavitt & Co. In July 1965, Chase, Leavitt & Co. was not performing any service of any kind for Schulte & Bruns, its last and only services having been rendered in March 1964. Under such circumstances it is unnecessary to determine whether or not, as libellant contends, service upon a mere husbanding agent is sufficient to bind the owner of a vessel while the agent is actually performing its duties as such. See George H. McFadden & Bros. v. The M/S Sunoak, 167 F.Supp. 132, 135 (E.D. Va.1958). In the instant case the service upon Chase, Leavitt & Co. was plainly insufficient to bind Schulte & Bruns under the established rule that when the person served is not the agent of the respondent at the time of the attempted service of process, the attempted service is ineffectual. George H. McFadden & Bros. v. The M/S Sunoak, supra; Novitski v. Lykes Steamship Co., 90 F.Supp. 971 (E.D.Pa.1950); Miller v. The Sultana, 79 F.Supp. 877 (W.D.N.Y.1948), rev'd on other grounds, 176 F.2d 203 (2d Cir.), cert. denied, 338 U.S. 907, 70 S.Ct. 303, 94 L.Ed. 558 (1949); Holland v. Parry Nav. Co., 7 F.R.D. 471 (E.D.Pa. 1947); Andrade v. American Mail Lines, Ltd., 71 F.Supp. 201 (D.R.I.1947); Spreckels Sugar Co. v. South Atl. S.S. Lines, 55 F.Supp. 670 (S.D.Ga.1944); Johnson v. Black Diamond Lines, 36 F.Supp. 721 (E.D.Pa.1941).
The cases of Murphy v. International Freighting Corp., 182 F.Supp. 636, 639 (D.Mass.), aff'd, 283 F.2d 392 (1st Cir. 1960); Murphy v. Arrow Steamship Co., 124 F.Supp. 199 (E.D.Pa.1954); and Jenkins v. Lykes Bros. S.S. Co., 48 F.Supp. 848 (E.D.Pa.1943), upon which libellant relies, are plainly distinguishable. Unlike the present case, each of these cases involved a continuous and regular pattern of business relations between the husbanding agent and the ship-owner, even though such activity was on a ship-to-ship basis. Furthermore, in Murphy v. International Freighting Corp. and Jenkins v. Lykes Bros. S.S. Co. it appears that on the date when service was made on the alleged agent, the latter was actually performing its duties as an agent for the defendant steamship company.[1]
In view of the fact that Chase, Leavitt & Co. was not acting as an agent for Schulte & Bruns at the time of the service of process upon the former, the motion to quash the service must be granted.
It is so ordered.
NOTES
[1]  Although this fact is not evident from the opinion in Jenkins v. Lykes Bros. S.S. Co., the omission was supplied in the subsequent opinion of the same court in Holland v. Parry Nav. Co., supra, 7 F.R.D. at 473.


637 F.3d 1207 (2011)
Thomas C. O'BRYANT, Plaintiff-Appellant,
v.
M.D. FINCH, Defendant-Appellee,
Shannon R. Herring, et al., Defendants.
No. 09-13493.
United States Court of Appeals, Eleventh Circuit.
April 6, 2011.
*1208 Cecilia R. Dickson (Court-Appointed), Thomas S. Jones, Jones Day, Pittsburgh, PA, for O'Bryant.
Susan A. Maher, Tallahassee, FL, for Finch.
*1209 Before HULL, KRAVITCH and BLACK, Circuit Judges.
PER CURIAM:
Plaintiff-Appellant Thomas C. O'Bryant ("O'Bryant"), a prisoner in the custody of the Florida Department of Corrections ("FDOC"), appeals from the district court's judgments in favor of the seven defendant prison officials on his 42 U.S.C. § 1983 claims. Specifically, O'Bryant appeals the district court's: (1) grant of summary judgment to four Defendants-Appellees, J.A. Peters, C.L. Pittman, G.L. Taylor, and Vanessa Rhynes, on his § 1983 claims that they violated his due process rights in various ways during his prison disciplinary proceedings; (2) grant of summary judgment to two Defendants-Appellees, Shannon Herring and B.G. Baines, on O'Bryant's claim that they retaliated against him for filing grievances, in violation of O'Bryant's First Amendment rights; and (3) the verdict and final judgment, after a bench trial, in favor of Defendant-Appellee Mitchell D. Finch on O'Bryant's claim that Finch conducted a cell search in retaliation for O'Bryant's grievance filings.[1]
After review of the parties' briefs and the record, and with the benefit of oral argument, we conclude that none of O'Bryant's claims on appeal have merit and thus affirm the district court's rulings. Only O'Bryant's First Amendment retaliation claim against Defendants Herring and Baines warrants further discussion.

I. FACTUAL BACKGROUND
O'Bryant is serving two life sentences in the FDOC. During the events giving rise to this suit, O'Bryant was housed at Holmes Correctional Institution ("HCI"). All seven Defendants-Appellees were correctional staff working at HCI during the relevant times covered by O'Bryant's amended complaint. O'Bryant is now housed at another prison facility.
While at HCI on October 27, 2004, O'Bryant received a consultation involving questions he had regarding prison rules. On October 28, 2004, O'Bryant filed an informal grievance about this consultation process. When the informal grievance went unanswered, he filed a formal grievance on November 10, 2004. Regarding those October grievances, O'Bryant appealed to the FDOC on December 10, 2004. The appeal was denied because the FDOC deemed that the institutional-level response was appropriate.
O'Bryant alleges that, on December 13, 2004, prison staff at HCI began retaliating against him for filing the October grievances. We recite a December 13 incident as background to the December 14 and 17 disciplinary reports by Defendants Herring and Baines. Specifically, O'Bryant claims that on December 13, 2004, Defendant Finch searched O'Bryant's cell in retaliation for O'Bryant's filing the October grievances. During the search, Finch found a bottle of whiteout, which is contraband. Finch did not file a disciplinary report. O'Bryant, however, alleged that Finch told him to cease filing grievances or O'Bryant would be subjected to disciplinary reports and administrative confinement. O'Bryant filed a grievance about *1210 this incident the day it happened. After a bench trial, the district court found in favor of Defendant Finch.[2] With this background of the December 13 cell search by Defendant Finch, we turn to the December 14 and 17 incidents involving Defendants Herring and Baines, respectively.

A. Herring Disciplinary Report
On December 14, 2004, prison officials ordered O'Bryant to meet with various prison staff, including Defendant Herring, to discuss O'Bryant's complaints. Herring and O'Bryant disagree as to what happened next.
According to Herring, when Herring attempted to counsel O'Bryant about O'Bryant's failure to check in with Herring at the Center Gate upon returning from a call-out, O'Bryant said, "The cold has done got to your brain and made you ignorant. I did check in." Herring continued to counsel O'Bryant, but O'Bryant told Herring that "you're fucking retarded." The shift officer in charge authorized Herring to write a disciplinary report. Herring subsequently issued a disciplinary report ("Herring DR") against O'Bryant for disrespect. O'Bryant was placed in administrative confinement pending resolution of the charge against him.
O'Bryant's version of events differs. When O'Bryant arrived at Center Gate, Herring told O'Bryant to eat and then wait on the benches nearby. According to O'Bryant, after the inmates finished eating, Herring called for O'Bryant, told O'Bryant to turn around and "cuff up," and told O'Bryant he was "going to jail for disrespect."[3] Herring told O'Bryant that O'Bryant had disrespected him, and when O'Bryant asked how he had disrespected Herring, Herring replied "I'll think up something."
On December 15, 2004, O'Bryant received written notice of the Herring charge. The notice informed O'Bryant that an impartial investigation would be performed and that he would have the following rights during that investigation: (1) he could request staff assistance; (2) he would be informed of the charges against him during the investigation;[4] and (3) he should make any witnesses known to the investigating officer, and those witnesses' testimonies would be presented by written statements. The notice also provided O'Bryant information about his rights during the disciplinary hearing, including, inter alia: (1) the right to request that the hearing be conducted by the disciplinary team rather than the hearing officer; (2) the right to appear in person at the hearing; (3) the right to request staff assistance; (4) the right to make a statement; (5) the right to present evidence and witnesses as deemed appropriate by the disciplinary team or hearing officer; (6) the right to be informed verbally and in writing of the disciplinary panel's decision and the evidence relied upon in coming to the decision; and (7) the right to appeal the decision to the warden. O'Bryant was given an opportunity to write out his version of the incident, which he did.
*1211 For the Herring DR, a disciplinary panel hearing was held on December 21, 2004, in front of Defendants Peters and Pittman. O'Bryant indicated that he did not make the statements attributed to him in the Herring DR and that, in fact, the entire incident alleged in the Herring DR was fabricated. O'Bryant contended that Herring created the DR in retaliation for O'Bryant's having filed earlier grievances against staff at HCI. After hearing O'Bryant's explanation of the Herring DR, the panel found O'Bryant guilty "based on Officer S. Herring's statement" and sentenced him to 30 days' disciplinary confinement.[5]
O'Bryant appealed the disciplinary action to the warden, claiming that the Herring DR was false and retaliatory; that he had not received credit for time served in confinement; and that the disciplinary hearing team was not impartial.[6] O'Bryant's appeal was unsuccessful.

B. Baines Disciplinary Report
The December 17 disciplinary report involved O'Bryant and Defendant Baines. Baines asserts that he asked O'Bryant to back away from his cell door because of an emergency in another cell. O'Bryant then said, "And if I don't, I guess you'll write me a damn disciplinary report, won't you[?]"
O'Bryant's version of events differs. According to O'Bryant, he was laying on his bunk on December 17, 2004 when Defendant Baines stopped in front of his cell. Baines made a comment that O'Bryant could not hear, and when O'Bryant asked Baines what Baines had said, Baines replied, "You'll find out."
On December 21, 2004, O'Bryant was served with notice of a disciplinary report written by Baines ("Baines DR") alleging "disrespect to officials."[7] This December 21 notice informed O'Bryant of his rights during the investigation process and at the disciplinary hearing; the notice catalogued the same rights he had during the Herring DR investigation and hearing process.
For the Baines DR, a disciplinary panel hearing was held on December 29, 2004, in front of Defendants Taylor and Rhynes. O'Bryant contended that the Baines DR was entirely false and written for purely retaliatory reasons. O'Bryant was found guilty "based on Sergeant B. Baine's [sic] statement" and was sentenced to another 30 days' disciplinary confinement.[8]
O'Bryant appealed unsuccessfully to the warden.

C. Procedural History
On May 26, 2005, O'Bryant filed a complaint in the United States District Court for the Northern District of Florida alleging, inter alia, that Defendants Herring and Baines violated O'Bryant's First Amendment rights by retaliating against him for filing grievances against HCI staff. O'Bryant alleges Herring and Baines made false disciplinary reports to retaliate against him. The matter was referred to a magistrate judge, who determined that "where a prisoner is actually found guilty of a disciplinary infraction, he does not state a claim for retaliation in the writing *1212 of the DR." The magistrate judge concluded that because "[t]he record reflects that plaintiff was convicted of the DR after a hearing at which due process was afforded... [,]" and O'Bryant's punishment "was imposed based on an actual violation of prison rules[ ] ... [,]" O'Bryant had no claim for a constitutional violation. The district court subsequently adopted the magistrate judge's recommendation and granted summary judgment to Defendants Herring and Baines on O'Bryant's First Amendment retaliation claims. O'Bryant timely appealed.[9]

II. DISCUSSION

A. Retaliation Claims
"The First Amendment forbids prison officials from retaliating against prisoners for exercising the right of free speech." Farrow v. West, 320 F.3d 1235, 1248 (11th Cir.2003). "It is an established principle of constitutional law that an inmate is considered to be exercising his First Amendment right of freedom of speech when he complains to the prison's administrators about the conditions of his confinement." Smith v. Mosley, 532 F.3d 1270, 1276 (11th Cir.2008) (citing Farrow, 320 F.3d at 1248).
An inmate may maintain a cause of action for retaliation under 42 U.S.C. § 1983 by showing that a prison official's actions were "the result of [the inmate's] having filed a grievance concerning the conditions of his imprisonment." Farrow, 320 F.3d at 1248 (quotation marks omitted and emphasis added). To establish a First Amendment retaliation claim, a prisoner need not allege the violation of an additional separate and distinct constitutional right; instead, the core of the claim is that the prisoner is being retaliated against for exercising his right to free speech. Id. To prevail on a retaliation claim, the inmate must establish that: "(1) his speech was constitutionally protected; (2) the inmate suffered adverse action such that the [official's] allegedly retaliatory conduct would likely deter a person of ordinary firmness from engaging in such speech; and (3) there is a causal relationship between the retaliatory action [the disciplinary punishment] and the protected speech [the grievance]." Mosley, 532 F.3d at 1276.[10]
Here, O'Bryant alleges that Defendants Herring and Baines fabricated facts underlying disciplinary reports to retaliate against him for filing earlier grievances against HCI staff. Thus, the alleged retaliatory conduct is the false disciplinary charges. O'Bryant alleges that he did not say what Herring and Baines reported in their disciplinary reports and that Herring and Baines made their false reports only to retaliate.
The Defendants respond that O'Bryant was found guilty of the disciplinary charges based on evidence and after a hearing in which O'Bryant was afforded procedural due process. As a result, the *1213 Defendants contend that O'Bryant cannot establish a retaliation claim when he has been found guilty of the actual conduct underlying the disciplinary reports and that conduct violates prison rules. O'Bryant counters that (1) he was not afforded adequate due process, and (2) in any event, he can still state a retaliation claim after adequate due process. To aid our inquiry, we first review Supreme Court decisions about due process in prison disciplinary proceedings.

B. Wolff and Hill

In Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), state inmates filed suit under § 1983 alleging several prison rules and regulations "did not comply with the Due Process Clause of the Fourteenth Amendment...." Id. at 542-43, 94 S.Ct. at 2968. In Nebraska, a state statute created good time credits and state prisoners could lose those good time credits if they were guilty of "serious misconduct." Id. at 547, 94 S.Ct. at 2970. The Supreme Court held that a prisoner had a protected liberty interest in statutory good time credits, and thus had a constitutional right to procedural due process in a disciplinary hearing. Id. at 555-57, 94 S.Ct. at 2974-75.
The Supreme Court in Wolff outlined the specific hearing procedures that prison disciplinary panels must comply with to satisfy the standards of procedural due process in the prison setting. Id. at 556, 94 S.Ct. at 2975 ("Prison disciplinary proceedings are not part of a criminal prosecution, and the full panoply of rights due a defendant in such proceedings does not apply."). Wolff instructed that prisoners must receive: (1) advance written notice of the charges against them; (2) an opportunity for the inmate to call witnesses and present documentary evidence, so long as doing so is consistent with institutional safety and correctional goals; and (3) a written statement by the factfinder outlining the evidence relied on and the reasons for the disciplinary action. Id. at 563-67, 94 S.Ct. at 2978-80.
Similarly, in Superintendent v. Hill, 472 U.S. 445, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985), the Supreme Court addressed the requirements of procedural due process in the prison setting. Inmate Hill had his good-time credits revoked after a disciplinary board found him guilty of violating prison regulations for his involvement in an assault on another prisoner. Id. at 448, 105 S.Ct. at 2770.[11] His conviction, in turn, was based on testimony by a prison guard at his disciplinary hearing. Id. at 447, 105 S.Ct. at 2770. Hill instructed that the revocation of good time credits only satisfies minimal standards of procedural due process if "the findings of the prison disciplinary board are supported by some evidence in the record." Id. at 454, 105 S.Ct. at 2773 (emphasis added). The Supreme Court also advised that "[a]scertaining whether this [due process] standard is satisfied does not require examination of the entire record, independent assessment of the credibility of witnesses, or weighing of the evidence." Id. at 455, 105 S.Ct. at 2774. According to the Supreme Court, "the relevant question is whether there is any evidence in the record that could support the conclusion reached by the disciplinary board." Id. at 455-56, 105 S.Ct. at 2774 (emphasis added). Applying these rules, the Supreme Court determined that the complaining guard's oral testimony and written report *1214 were "sufficient to meet the requirements imposed by the Due Process Clause." Id. at 456, 105 S.Ct. at 2774.[12]
Taking into account the unique concerns surrounding prison disciplinary proceedings, the Supreme Court in Hill emphasized that those hearings "take place in a highly charged atmosphere" in which "prison administrators must often act swiftly on the basis of evidence that might be insufficient in less exigent circumstances." Id. The Supreme Court concluded that due process merely requires that there be some evidence in the record that supports the decision of the disciplinary board. Id. at 455-56, 105 S.Ct. at 2774. The Supreme Court instructed that: "[t]he fundamental fairness guaranteed by the Due Process Clause does not require courts to set aside decisions of prison administrators that have some basis in fact." Id. at 456, 105 S.Ct. at 2774 (emphasis added). This is because "[r]evocation of good time credits is not comparable to a criminal conviction, and neither the amount of evidence necessary to support such a conviction, nor any other standard greater than some evidence applies in this context." Id. (citations omitted).[13]
The clear implication of Hill is that courts are not to conduct exhaustive reviews of the findings of prison disciplinary panels. Id. at 457, 105 S.Ct. at 2775 ("Although the evidence in this case might be characterized as meager, ... the record is not so devoid of evidence that the findings of the disciplinary board were without support or otherwise arbitrary."); see Young v. Jones, 37 F.3d 1457, 1460 (11th Cir.1994) (stating the Wolff Court "indicated a reluctance to review the judgments of prison administrators and acknowledged that prison disciplinary proceedings do not require the `full panoply of rights' due a defendant in a criminal proceeding").[14]

C. O'Bryant Received Due Process
In this case, the record establishes that the prison officials complied with the requirements of Hill and Wolff. O'Bryant received detailed written notice of the charges against him, and of his rights during the investigations and hearings. See Wolff, 418 U.S. at 563, 94 S.Ct. at 2978 (requiring advance written notice of charges). O'Bryant had the opportunity to present evidence and witnesses, as stated in the notice provided before his disciplinary hearings. See id. at 566, 94 S.Ct. at 2979 (stating that prisoners should be allowed to call witnesses and present evidence so long as it does not interfere with institutional safety or legitimate correctional goals). O'Bryant also received written statements of the findings against him and the evidence relied upon by the disciplinary panels. See id. at 563, 94 S.Ct. at 2978 (requiring that factfinder give prisoner written notice of evidence relied on and reasons for disciplinary action). He also received some protections not mandated *1215 by Wolff or Hill, such as the rights to request staff assistance and to appeal the panels' decisions to the warden. Finally, the written statements by Herring and Baines constituted evidence before the disciplinary panels that supported the panels' decisions. See Hill, 472 U.S. at 456, 105 S.Ct. at 2774 (finding that prison disciplinary panel complied with due process requirements when convicting prisoner based on oral testimony and written report by prison guard).
Having determined O'Bryant received procedural due process in these two disciplinary hearings, we turn to whether he can establish a retaliation claim for false disciplinary charges after being afforded due process and found guilty of the actual conduct in the charges.

D. O'Bryant's Retaliation Claims
Under the circumstances of this case, we conclude that O'Bryant's retaliation claims fail for either of two independent reasons. First, an inmate cannot state a claim of retaliation for a disciplinary charge involving a prison rule infraction when the inmate was found guilty of the actual behavior underlying that charge after being afforded adequate due process. Second, and independent of his ability to state a retaliation claim, O'Bryant has not shown a causal connection between his earlier grievances and the disciplinary harm in this case.
As to the first ground, we agree with the Eighth Circuit that a prisoner cannot maintain a retaliation claim when he is convicted of the actual behavioral violation underlying the alleged retaliatory false disciplinary report and there is evidence to sustain the conviction. See, e.g., Hartsfield v. Nichols, 511 F.3d 826, 829 (8th Cir.2008) (involving allegations of false disciplinary reports and concluding "claims of retaliation fail if the alleged retaliatory conduct violations were issued for the actual violation of a prison rule"); Henderson v. Baird, 29 F.3d 464, 469 (8th Cir.1994) (noting inmate alleged officer was lying but concluding that the finding of an actual violation of prison rules was based on some evidence of the violation and "essentially checkmates [the prisoner's] retaliation claim"); Orebaugh v. Caspari, 910 F.2d 526, 528 (8th Cir.1990) ("[N]o claim can be stated when the alleged retaliation arose from discipline imparted for acts that a prisoner was not entitled to perform.").
The Eighth Circuit explained that "a defendant may successfully defend a retaliatory discipline claim by showing `some evidence' the inmate actually committed a rule violation." Hartsfield, 511 F.3d at 829.[15] The Eighth Circuit's conclusion essentially rests on these principles: (1) the inmate was charged with conduct that is not protected speech but actually violates a prison rule; and (2) the inmate is found guilty of the actual behavioral violation after being afforded adequate due process in the prison setting.
We agree with these principles too. If a prisoner is found guilty of an actual disciplinary infraction after being afforded due process and there was evidence to support the disciplinary panel's fact finding, the prisoner cannot later state a retaliation claim against the prison employee who reported the infraction in a disciplinary report. Whether an inmate actually committed the charged infraction or whether the disciplinary report falsely accuses the inmate are questions of fact that are decided by the disciplinary panel. In the particular *1216 circumstances here, O'Bryant has suffered adverse action (here 30 days' disciplinary confinement) because he actually violated the prison rules and not because of his earlier grievances. To find otherwise would render the prison disciplinary system impotent by inviting prisoners to petition the courts for a full retrial each time they are found guilty of an actual disciplinary infraction after having filed a grievance. Because he was guilty of the disciplinary charges resulting in the disciplinary harm at issue, O'Bryant's retaliation claim fails.[16]

E. Lack of Causal Connection
O'Bryant's retaliation claim also fails for another independent reason. Specifically, O'Bryant has not established a causal connection between his earlier grievances and the disciplinary harm. In this regard, we review our recent prison-retaliation decisions that address the requisite causal connection: (1) Smith v. Mosley, 532 F.3d 1270 (11th Cir.2008); and (2) Moton v. Cowart, 631 F.3d 1337 (11th Cir.2011).

1. Smith v. Mosley

In Mosley, a prison inmate ("Smith") sued Warden Gwendolyn Mosley ("Mosley"), Assistant Warden Kenneth Jones ("Jones"), and Lt. Kenneth Sconyers ("Sconyers") under 42 U.S.C. § 1983, alleging retaliation against him for engaging in protected speech. 532 F.3d at 1271-72. The inmate had sent a letter to Defendant Jones and the United States Department of Justice ("DOJ") complaining about prison conditions. Id. at 1272-74.
The Court determined that these two parts of inmate Smith's letter amounted to grievances protected by the First Amendment: (1) a statement that inmates with compromised immune systems who were susceptible to pneumonia were forced to go outside in the cold with substandard clothing and no protection; and (2) a statement that Smith was being fed a diet consisting of 95% starch when prison officials knew he was a diabetic. Id. at 1276.
In contrast, the Court determined other allegations in inmate Smith's letter were not protected speech but were instead violations of prison rules. Id. at 1276-77. Smith's first non-protected statement violated a prison rule forbidding false statements to a DOC employee with intent to deceive or to prejudice another person, and read: "Like that fiasco in 1999, where the administrative heads of this institution decided to vaccinate everyone in this institution against the venereal disease syphilis." Id. at 1274 (quotation marks omitted). Smith's second group of non-protected statements, which ran afoul of a prison rule forbidding insubordination, stated: "Maybe you should be forced to stand around outside, unsheltered, in thirty-eight degrees, with a 10-15 MPH breeze blowing. *1217 See how you'd like it." Id. at 1276. Smith's letter also insinuated that getting prisoners sick would be a good way to "limit the population in the prisons," and compared the prison's programs to the "Tuskegee Study." Id. at 1276-77.
Believing Smith's letter violated prison rules, Defendant Jones prepared an incident report and submitted it to his supervisor, Defendant Mosley. Id. at 1273. After meeting with Mosley, Defendant Jones met with Smith and informed Smith that he would have a disciplinary hearing to determine whether Smith had violated prison rules. Id. at 1273-74. Jones prepared separate disciplinary reports for each infraction. After separate hearings on the charges, hearing officer Davis found Smith guilty of each charge. Id. at 1274-75. A prison rule required that all determinations by hearing officers be reviewed by the warden or a designee. Id. at 1275. Warden Mosley designated Lt. Sconyers to serve as review officer. Id. Sconyers approved Davis's findings and recommendations. Id.
Inmate Smith's § 1983 retaliation suit alleged that Defendants Mosley, Jones and Sconyers "commenced the disciplinary hearing in retaliation against him for exercising his First Amendment right of free speech." Id. at 1275. This Court determined that the first two elements of a retaliation claim were met: (1) two of the grievances in Smith's letter were protected speech; and (2) the disciplinary action taken against him would likely deter his speech. Id. at 1276-77.[17] Thus, the main issue confronting the Court was whether there was a causal relationship between Smith's constitutionally protected speech (the two grievances) and the discipline meted out to Smith for the two disciplinary charges.
The Court in Mosley explained that the causal connection inquiry asks "whether the defendants were subjectively motivated to discipline because Smith complained of some of the conditions of his confinement." Id. at 1278. We stated that most courts determine actors' subjective motivation by applying the burden-shifting formula from Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977). Mosley, 532 F.3d at 1278. Under Mt. Healthy, "`[o]nce the plaintiff has met his burden of establishing that his protected conduct was a motivating factor behind any harm [i.e., disciplinary action], the burden of production shifts to the defendant.'" Mosley, 532 F.3d at 1278 (quoting Thaddeus-X v. Blatter, 175 F.3d 378, 399 (6th Cir.1999)). Then, "`[i]f the defendant can show that he would have taken the same action in the absence of the protected activity, he is entitled to prevail on [his motion for summary judgment as a matter of law or prior to trial on] summary judgment.'" Mosley, 532 F.3d at 1278 (quoting Thaddeus-X, 175 F.3d at 399). In other words, if the official can show that he would have taken the disciplinary action in the absence of the prisoner's protected conduct, he cannot be held liable. Mosley, 532 F.3d at 1278 n. 22.
Turning to the facts of Smith's case, the Court in Mosley stated that "[w]hether a reasonable jury could find that Smith's grievances were the motivating factor behind the defendants' actions is a close question." Id. at 1278. "Smith introduced *1218 no direct evidence" that the grievances in the letter motivated the defendants' conduct about the other parts of the letter, and "there is nothing in [Smith's] responses to Jones's allegations that even suggests that he thought the charges were a mere pretext...." Id. Although Smith pled guilty to the insubordination charge, Smith defended against the false statement charge, pointing out that the syphilis inoculations had actually taken place. Id. at 1274-75. Jones, however, pointed out (1) that the inoculations were carried out by the Alabama Department of Health, and (2) that Smith's statements in the letterthat the inoculations were given at the direction of the prison's administrationwere meant to prejudice the prison administration because Smith's letter was sent to the DOJ. Id. at 1275.
The Court in Mosley then "assume[d] without deciding that a reasonable fact finder could infer from the circumstances,... that the letter's presentation of the grievances was a motivating factor in Mosley and Jones's decision to go forward with the charges," which also stemmed from the exact same letter. Id. at 1278-79 (emphasis added). The question under Mt. Healthy became "whether a reasonable fact finder, a jury, would have to find that the defendants would have disciplined Smith even in the absence of the protected conduct, i.e., the submission of grievances." Id. at 1279 (quotation marks omitted). The Court determined that Defendants Mosley and Jones would have acted as they did even absent Plaintiff Smith's protected conduct (the grievances). Id. The Court stated that "[o]bjective prison administrators standing in Mosley and Jones's shoes would assume that the gist of what Smith said in his letter, and the language he employed, which reeked of disrespect for the administrators' authority, would be noised about the prison's population and, if ignored, could seriously impede their ability to maintain order and thus achieve the institution's penological objectives." Id. As to Smith's retaliation claim, this Court thus affirmed the district court's entry of summary judgment for the defendant prison officials.

2. Moton v. Cowart

Retaliatory disciplinary conduct was also an issue in Moton v. Cowart, 631 F.3d 1337 (11th Cir.2011), where this Court reversed the entry of summary judgment for the Defendant prison official, Captain Cowart. Inmate Moton had filed an October 30, 2004 grievance in which he wrote in large capital letters: "REMEDY: RETURN MY REQUEST DATED 10-15-04 WITH APPROPRIATE ANSWER AS REQURED [sic]." Id. at 1339-40. Upon receipt, Defendant Cowart told Moton she would file a disciplinary report for disrespect. Id. Cowart contended Moton then told Cowart that "`she would be hearing from his lawyer'" and "[y]ou will answer these grievances." Id. at 1340 (quotation marks omitted). Cowart filed two disciplinary reports alleging Moton violated prison rules prohibiting (1) "disrespect to officials ... by means of words, gestures and the like" and (2) "making spoken, written or gestured threats against prison officials." Id. (quotation marks and brackets omitted). The disciplinary hearing team found Moton guilty, imposing disciplinary confinement and a loss of 60 days' gain time. Id. In Moton's appeal, the FDOC found him not guilty because Cowart's statement of facts did not support the charge. Id.
After stating the same three elements of a retaliation claim set forth in Mosley, this Court in Moton pointed out "[t]he district court assumed without deciding that Moton had satisfied the first two elements of his retaliation claim" and had granted summary judgment upon finding Moton failed to establish a causal connection between his October 30 grievance and statements *1219 and Cowart's retaliatory action. Id. at 1342.
Reversing in Moton, this Court concluded Moton had shown material issues of fact between his grievance and the discipline Cowart imposed. As to the grievance in capital letters, this Court found "using large and upper case letters in a grievance, by itself," did not violate the prison rule prohibiting disrespect. Id. The Court also concluded "as a matter of law" that an inmate's statement that he wants or plans to contact his attorney does not constitute a punishable "spoken threat" and thus that prison rule was not violated, either. Id. at 1342-43 (quotation marks omitted). Accordingly, Moton's conduct did not violate any prison rule, and no prison infraction supported the discipline imposed.
This Court in Moton concluded (1) that "the district court erred by finding that Cowart `reasonably' concluded that Moton's grievance violated the prison rule against disrespect because the grievance included large capital letters," id. at 1343, and (2) the district court erred by finding that Moton's statement "could be reasonably construed as a spoken threat." Id. at 1343 (quotation marks omitted). Moton thus showed both that the FDOC had found him not guilty and also that no objective prison official could reasonably conclude that Moton had violated any prison rule. Given there was no reasonable basis to support Cowart's disciplinary action that instantly followed Moton's written grievance and verbal attorney statement, Moton had created a fact issue as to "causal relationship between his grievance and the discipline Cowart imposed." Id. at 1342.

3. O'Bryant's Lack of Causal Connection
With this background, we turn back to O'Bryant's case. Even if O'Bryant's conviction under the DRs does not per se bar a retaliation claim, as suggested by the Eighth Circuit's precedent and now held by this Court above, O'Bryant's claim fails because he has not presented evidence of retaliatory animus on the part of either Defendant Herring or Defendant Baines. See Harris v. Ostrout, 65 F.3d 912, 916 (11th Cir.1995) (affirming summary judgment for defendant Collins because plaintiff "produced nothing, beyond his own conclusory allegations, suggesting that Collins' actions in compliance with the strip search regulations were motivated by a retaliatory animus"); see also Moton, 631 F.3d at 1341 ("To establish causation, the plaintiff must show that the defendant was subjectively motivated to discipline the plaintiff for exercising his First Amendment rights.") (quotation marks omitted).
And even assuming arguendo that O'Bryant has shown that Defendants Herring and Baines were subjectively motivated to discipline O'Bryant because of his grievances, the record shows the defendants would have taken the same disciplinary actions in the absence of O'Bryant's protected activity. See Mosley, 532 F.3d at 1278 (stating "[i]f the defendant can show that he would have taken the same action in the absence of the protected activity, he ... prevail[s] on ... summary judgment"); Moton, 631 F.3d at 1342 (quoting same). The gist of O'Bryant's statements each time reeked of disrespect of, and profanity to, the Defendants, who would have disciplined O'Bryant even without any grievances. Here, O'Bryant was convicted of the disciplinary charges and he would have suffered the same adverse action even if he had not engaged in the grievances.
Any possible causal connection between the protected activity (the grievances) and the harm (the disciplinary charges and *1220 sanctions) is severed since the harm is not in reaction to any protected activity, but directly due to an improper activity. Stated another way, even if some impermissible reason had entered into Herring and Baines's decision-making process to charge O'Bryant with prison disciplinary infractions, O'Bryant would have been disciplined anyway, as the hearing panels concluded he committed the charged conduct which violated prison rules.

III. CONCLUSION
For all of these reasons, we affirm the district court's rulings in this case and entry of final judgments in favor of the Defendants-Appellees.
AFFIRMED.
NOTES
[1]  As to his claims against Finch, O'Bryant challenges some of the district court's rulings, including its evidentiary rulings during his bench trial. All seven Defendants moved for summary judgment and the magistrate judge recommended granting the motion for six Defendants, but not for Defendant Finch. The district court adopted the recommendation, held a bench trial as to Finch, and found in favor of Finch after the trial.
[2]  O'Bryant did not tell Defendant Finch who gave him the whiteout, but did confirm that it came from another prisoner, not correctional staff. According to Defendant Finch, at the time he conducted the cell search, he did not know that O'Bryant had filed grievances against correctional staff. According to Finch, he was never asked or instructed to threaten or retaliate against O'Bryant, and the purpose of the cell search was to insure prison security.
[3]  "Going to jail" is a euphemism used in prison to refer to disciplinary confinement separate from the open population housing.
[4]  The notice also included a "statement of facts" that recited the factual charges Herring made against O'Bryant.
[5]  There is no evidence O'Bryant lost any good time credits.
[6]  Among other things, O'Bryant complained that a witness presided over the hearing. Defendant Peters was listed on O'Bryant's witness sheet, apparently as a character witness.
[7]  The magistrate judge's report and recommendation says O'Bryant was served on December 20. The record, however, appears to indicate that he was served on December 21. The confusion may come from the Baines DR's having been written on December 20.
[8]  There is no evidence O'Bryant lost any good time credits.
[9]  We review the district court's grant of summary judgment de novo, considering all evidence in the light most favorable to the non-moving party. Rioux v. City of Atlanta, 520 F.3d 1269, 1274 (11th Cir.2008).
[10]  Some courts appear to describe the type of retaliation claim herefiling false disciplinary charges in retaliation for the inmate's grievancesnot as a First Amendment retaliation claim but as a substantive due process claim. See Black v. Lane, 22 F.3d 1395, 1402-03 (7th Cir.1994) ("Issuing false and unjustified disciplinary charges can amount to a violation of substantive due process if the charges were in retaliation for the exercise of a constitutional right."). Our above precedent considers it more a First Amendment retaliation claim. However labeled, our Court recognizes that an inmate has a § 1983 action if prison officials file false disciplinary charges in retaliation for the inmate exercising his right to free speech by making grievances about prison conditions.
[11]  In Hill, the inmate accumulated good time credits that reduced his term of imprisonment under Massachusetts law. "Such credits may be lost `if a prisoner violates any rule of his place of confinement.'" 472 U.S. at 447, 105 S.Ct. at 2769. Hill had lost 100 days of good time and was confined in isolation for 15 days. Id. at 448, 105 S.Ct. at 2770.
[12]  We recognize that Hill did not arise from the retaliation context. However, its teachings on the Due Process Clause are nonetheless relevant to O'Bryant's claims.
[13]  For the Herring DR and the Baines DR, O'Bryant received 30 days' disciplinary confinement. Because O'Bryant undisputedly did not lose any good time credits, the Defendants argue O'Bryant did not lose a liberty interest that triggered procedural due process requirements under either Wolff or Hill. O'Bryant responds that he was at risk of losing good time credits, which is sufficient. We need not resolve this liberty-interest question because we discuss only O'Bryant's retaliation claim and only whether O'Bryant's conviction after being afforded due process bars his retaliation claim for allegedly false disciplinary charges.
[14]  The Young Court further explained that "this court should not be forced into the role of judging and reweighing the evidence presented in a prison disciplinary hearing." 37 F.3d at 1460.
[15]  The Eighth Circuit added that "a report from a correctional officer, even if disputed by the inmate and supported by no other evidence, legally suffices as `some evidence' upon which to base a prison disciplinary violation, if the violation is found by an impartial decisionmaker." Hartsfield, 511 F.3d at 831.
[16]  While we follow the Eighth Circuit's reasoning, we note two other circuits have reached different conclusions, but arguably under either different facts, see Graham v. Henderson, 89 F.3d 75 (2d Cir.1996), or different reasoning, see Black, 22 F.3d 1395 (discussed at note 10, supra).

In Graham, the inmate alleged correctional staff filed false reports against him in retaliation for filing a grievance to protest the removal of showers. Id. at 79. The factual issue in Graham was whether the disciplined "protest" conduct was constitutionally protected grievance conduct, or was prohibited by prison regulations. There is no analogous issue of fact in this case. Id. at 79-81. O'Bryant's insubordinate speech in the disciplinary charges is properly prohibited by prison regulations and is not constitutionally protected speech. Mosley, 532 F.3d at 1277 (stating inmate's insubordinate remarks fell within the prison rules' proscriptions and were not protected speech). While filing a grievance is constitutionally protected conduct, the disciplined conduct in this case is entirely separate and distinct from O'Bryant's conduct in the exercise of free speech.
[17]  The Court in Smith v. Mosley acknowledged that in order to maintain a retaliation claim against prison officials, an inmate must establish that: "(1) his speech was constitutionally protected; (2) the inmate suffered adverse action such that the administrator's allegedly retaliatory conduct would likely deter a person of ordinary speech and firmness from engaging in such speech; and (3) there is a causal relationship between the retaliatory action and the protected speech." Id. at 1276.


OFFICE   OF THE ATTORNEY    GENERAL   OFTEXAS
                   AUSTIN
Ran.   Gee.   ii.    Sheppard   ” ?8#p   8

             (8)   Gvcrg pXY2Gn~ PIP-c., or ccrpomstfon ecmT
       ductIn& a Zheatrc, p&we of a~~sexxmt, or any
       bushwse ultorpriae     5.n colluectiou     Jim  the o&n&a-
       tion of which a p5ae in the Sarr. of uonoo &
       8owth*      Of valu% is ofrerocl or given to one OP
       wre   patrons   of suc.h theatre, place of w-t,
       op busimss enteqirise, and net glvon to41              pcz-
       trons thoroof pylng the aam charge for any cexm-
       t8l.n Pcwvice* wlwatty,        Gr cut-nt          , shall
       sake 8 ~oz-lflea wnthly myorb on the tueuty-
       fifth day of each nxmth to thy Coqtroller           of
       PublAo Accounts of the State of Texats, shovfsg
       the 6wunt of wcey so glren In @zx?e, and the
       nlue OS all p%zts or amards i3o gl~cin In cennoct-
       itnl8itI.l sucdl buairu?5s anP*        the next prCOti~
       SWXlth.
               @)Thor3 Is hereby levied a,tax 6qf381t6
       tveuty per cent (a$)   of the value of au sach
       wwy,   prites, ax% awards gi~sn in ooxmeotlon
       with the opration of each 8~3 all of the fore-
       f@ag bcsiness oaterppisee, and at the the of
       z&dng t&e rapart to the Goiqtroller     of WlSe
       Atxuunts, tb6 ovwr or operator OS any au&
       bLu3imss &all puy to the state rr%8surer suca ,
       tu upon the totaz   33zalnt of snumzy, pamI,   %xlxI
       avamls so giveu rtnr%ugthe next pr~eiting nautb.. . .f

               AruJ     8 rcadbg    of   the   abate   statute   it   is note3   that
tor the tax to be due, the pris% start be offered or e;iton to
on3 or E~CP0pawn8 of suc41theatm, +we            of axmmnt,    or
busb~ess  entcrpiso  3zxI n%t &yen    to all   patrons theroef pay-
ing the 88me eIlarga SW the colz!lalalty or. 3ntcrtainwnt.     As
usea in thfs statute WC th in&   fillsYOr l  ap a tPh  o an(
                                                           th
                                                           5 esa w
wa uia g 8sth ewo r dlo usta mc.    910a0 not beHOve that mre
                                   ~~
entm.we into tIr3 contest 2.23 the olannor provided Tould sowrtf-
 tute on0 a         patron or cu3toswr     0P'JlrteG Furnltw%    Ccngmy.           If
 t?3c st8tutQ        baa 5a i3a?na%d,     it is sub3Htted    t&at the SapB         l-e-
 salt muldha~obeenacoolrpfishedby   sioplylev@ng                         tb;tzgu
 on th% giving of the pize in aozxm?ctiontit22 the
 the @8C%    Of b~uSiTheS9~ s%thOU$  retie                  pOtrOn%
 of busfwee.        221~ statute  sag not mfxmt to Imy the tan upcm
 all glSta amI prizea, bd aaly upoa those fall%ng within the
 terrje of the statute.   mat   m     ilf th% 5tdd.B  &K--2&t&&t
 thepizeshaflbeI;1Pentopatrol;rsolCt~~irteosederp~
 la oat nets aod our 8nsw6r to year ques3ties      * therefore3 a


              OFFICE   OF THE   ATTORNEY       GENERAL     OF TEXAS
                                    AUSTIN
 GROVER   SCLLCRS
        GENERAL
 ATTGINSV

Eonorabla Alfred b. Clyde
Criaim~l Dlatrlot Attormy
Fort tiorth,Tezaa

                                         opinion No. 0-6653
                                         Re: bgmy      0r               publfoationr
                                              underArt. 65             . A. P. C.
              Your request for an opinion of this de
as r0uor8;

       opinion, an individualor          oor
       liehor and aells Wo

       the others o                                      tlon a8 to
                                                         he odda

                                             are certain pub1ioatim.eor
                                            ata about rariout~harm moea
                                          traok,a,tho atartingtim66  for
                                          ea pertloipati~, name OS owner8
                                          Oeition~, bOttin&Jodda, and pasta
                                sotim   0t th6 inromation     appars     in   the
                       s;oh aa would ooamand the attention oi
                       here regardleesof their intereat or laok
                               We would not be so naive as to say
thqt   some or tha other matter submitted ie not or nia]r
                                                        not be
used   In oonneotionwith the laying bets on horse raoes. PtWli?lpfi
Iionorable   Alrred k. Clyde - page 2

some were even publlehed primarily to aid or assist one in-
terested in horse raoa gambling.  However, we swat measure
our answer In thdr opinion to the feats given without lndulg-
lng In speoulatlonor presumption.
             Art.   65&, V. A. P. C., reade a8 follows:
            "Seotlon 1. Any person who takes or aooapts or
       plaoea for another a bet or wager of money or anything
       of value on a horse raoe, dog raoe, automobile  MUJO,
       motoroyole.raceor any other raoe of any kind whatso-
       ever, football game, baa&all game, athletic ooutest
       or sports event of whatsoever kind or oharaoter; or
       any person who offera to take or aooept or plaoo for
       ar.otherany such bet or wager; or any pereon who as
       an agent, aervant or employee or otherwise,aide or
       encourages another to take or aooept or plaoe any
       such bet or wager; or any person who direotly or
       indirectlyauthorizes,aide or enoourages any acent,
       servant or employee or other person to take or aooept
       or place or tranamlt any auoh bet olrwager shall be
       guilty of book making and upon oonvlotlon be punished
       by oonflneumnt in the State Penltentlaryfor any term
       0r year6 not less than one (1.)nor more than flvo (5)
       or by oonflnement in the oounty all Sor not less than
       tan (10) days nor more than on0 i 1) year and by a tins
       or not less than One Bundred ($100.00)Dollare nor
       more.than One Thousand ($l,OOO,OO)Dollars."
Pe:ting on a horse raoe it3the gist or the orrense denounced
with referanoe to this pBrtiOular sport. Ylmmons v. State,
12.0S. W. (Zd) 1061. None of the publloatlonssubaltred ln-
vite or offer to take or plaoe a horae raoe bat.  Ho infor-
e.atl;nis contained therein OonOernInga plaoe where, tb
manner In whloh, or the person or pamone with whom, suoh
a bet may be plaoed.
              Your request doea not reveal that a partioular bet was
ever   aotually   nude, taken, placed for another, or offered by
mans    or and through the uae and aid of any of the publication8
submitted.
                                                                   247

Honorable Alfred b.. Clyde - page 3

          The sole question presented is whether the pubiioation
of such racing information In itself and standing alone, violates
the provisions of Art. 05Za, V. A. E. C. It Is to I;r:   noted that
bets on footbau   and other games and ruces are included within
the prohlbltion of the statute inquired about. Are newspapers
and sports writers who fill their pm-gaLe oUtions with the
na566, numbers and weights of the players, the condition of
their health, the new formtions and team strata&e&, to b; pro-
seouted because some fana use this inforaation in aid OS’ Lhe
illegal enterprise of betting    upon the football game? :rre
oolumnists and publishers of progralca for sporting events to
be placed In fear  of legal retribution   where they have expertiy
analyzed the abilities and reoords of op~osihg teams and mde
prognostloatlons based t&oreon    - plaoed in fear lest so!;e gunb-
ler seize upon and use his data as a predicate for his bet:      .de
do not think that auoh is the case. The publloatlon and dis-
s&s&nation of sporting lnrormatlon, statlstlos, and data is
not in itself a violation 0s our statutea. To so hoid, we
think, would violate a guaranty that is snored to every tier-
ioan - freedom 0s the press. Such wound not he the oase of
course if raots were developed showing that a given publioa-
tion was made and distributed for the purpose of and in fur-
tnerance and aid of a epeoiflo illegal gambling enterprise or
transaotioh.

          iilthout attempting to render hers an opinion on the
legality of such publications if oolilblnedwith other fao~s or cir-
oumatanoes whloh are not presented in your request, it is our
opinion that the bare publication and dlssemlnation of such ln-
formation oonstitutes no viol.ation 0s Art. 652a, V. A. r:. C.

                                           /J   Pugene Alvis
                                                  Assietaht


     18-1814
     Singh v. Barr
                                                                                BIA
                                                                              Poczter, IJ
                                                                           A202 068 909
                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1        At a stated term of the United States Court of Appeals
 2   for the Second Circuit, held at the Thurgood Marshall
 3   United States Courthouse, 40 Foley Square, in the City of
 4   New York, on the 7th day of July, two thousand twenty.
 5
 6   PRESENT:
 7            JON O. NEWMAN,
 8            JOSÉ A. CABRANES,
 9            GERARD E. LYNCH,
10                 Circuit Judges.
11   _____________________________________
12
13   HARBHAJAN SINGH,
14            Petitioner,
15
16                   v.                                          18-1814
17                                                               NAC
18   WILLIAM P. BARR, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                  Genet Getachew, Brooklyn, NY.
24
25   FOR RESPONDENT:                  Joseph H. Hunt, Assistant Attorney
26                                    General; Linda S. Wernery,
27                                    Assistant Director; Gerald M.
28                                    Alexander, Trial Attorney, Office
29                                    of Immigration Litigation, United
30                                    States Department of Justice,
31                                    Washington, DC.
 1          UPON DUE CONSIDERATION of this petition for review of a

 2   Board of Immigration Appeals (“BIA”) decision, it is hereby

 3   ORDERED, ADJUDGED, AND DECREED that the petition for review

 4   is DENIED.

 5          Petitioner Harbhajan Singh, a native and citizen of

 6   India, seeks review of a May 17, 2018, decision of the BIA

7    affirming a July 5, 2017, decision of an Immigration Judge

8    (“IJ”) denying his application for asylum, withholding of

9    removal, and relief under the Convention Against Torture

10   (“CAT”).    In re Harbhajan Singh, No. A202 068 909 (B.I.A. May

11   17, 2018), aff’g No. A202 068 909 (Immig. Ct. N.Y. City July

12   5, 2017).        We assume the parties’ familiarity with the

13   underlying facts and procedural history.

14          We have reviewed the decisions of both the IJ and the

15   BIA.    See Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d

16   Cir. 2005).      The standards of review are well established.

17   See 8 U.S.C. § 1252(b)(4)(B); Hong Fei Gao v. Sessions, 891

18   F.3d 67, 76 (2d Cir. 2018).     “Considering the totality of the

19   circumstances, and all relevant factors, a trier of fact may

20   base a credibility determination on . . . the consistency

21   between    the   applicant’s   or       witness’s   written   and   oral

22   statements . . . , the internal consistency of each statement,

                                         2
 1   the consistency of such statements with other evidence of

 2   record . . . and any inaccuracies or falsehoods in such

 3   statements,     without   regard   to   whether   an   inconsistency,

 4   inaccuracy, or falsehood goes to the heart of the applicant’s

 5   claim,    or     any   other    relevant    factor.”       8    U.S.C.

 6   § 1158(b)(1)(B)(iii).        “We defer . . . to an IJ’s credibility

 7   determination unless, from the totality of the circumstances,

 8   it is plain that no reasonable fact-finder could make such an

 9   adverse credibility ruling.”           Xiu Xia Lin v. Mukasey, 534

10   F.3d 162, 167 (2d Cir. 2008); accord Hong Fei Gao, 891 F.3d

11   at 76.     In this case, substantial evidence supports the

12   adverse        credibility      determination     given        multiple

13   inconsistencies regarding the details of the two alleged

14   attacks against Singh and related events.

15       Singh alleged that members of the Badal Party attacked

16   him twice in 2014 because he was a member of the Shiromani

17   Akali Dal Amritsar Party (“SADA”).           The agency reasonably

18   relied on several inconsistencies and variations in Singh’s

19   descriptions of the two attacks.           As to the first attack,

20   Singh testified that the assailants asked him whether he

21   worked for SADA, but he later testified that they did not ask

22   him this question; and Singh testified that his attackers

                                        3
 1   told him that they were members of the Badal party, but he

 2   later testified that they had not identified themselves but

 3   had asked him to join their party.       As to the second attack,

 4   he testified that his assailants did not say anything during

 5   the attack, but his mother’s and wife’s affidavits stated

 6   that the attackers threatened to kill him if he continued to

 7   work for SADA.     Singh also stated during his credible fear

 8   interview that the assailants searched his body after he fell

 9   to the ground and pretended to lose consciousness, but he did

10   not testify at his hearing that they searched his body.

11   Although these inconsistencies are not glaring, an IJ may

12   rely on the “cumulative effect” of minor inconsistencies, see

13   Xiu Xia Lin, 534 F.3d at 167           (internal quotation marks

14   omitted), and we do not second-guess an IJ’s finding, where,

15   as here, it is a “permissible view[] of the evidence,” Siewe

16   v. Gonzales, 480 F.3d 160, 167 (2d Cir. 2007) (internal

17   quotation marks omitted).

18       The   agency   also   reasonably   relied   on   several   other

19   inconsistencies    between   Singh’s     testimony    and   witness

20   affidavits.   See 8 U.S.C. §1158(b)(1)(B)(iii); Xiu Xia Lin,

21   534 F.3d at 167.   Singh testified that after his first attack,

22   his mother accompanied him to the police station, but his

                                     4
 1   mother’s, wife’s, and neighbor’s affidavits stated that his

 2   father    accompanied    him.             When    asked    to    explain     this

 3   discrepancy, Singh stated the affidavits were mistakenly

 4   referring to the second attack.                  However, the record shows

 5   each affidavit described the first attack when stating that

 6   Singh’s father went with him to the police station.                        The IJ

 7   thus was not compelled to credit Singh’s explanation that

 8   three    individuals    made       the    same    error.        See   Majidi   v.

 9   Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must

10   do    more   than   offer      a    plausible        explanation       for     his

11   inconsistent statements to secure relief; he must demonstrate

12   that a reasonable fact-finder would be compelled to credit

13   his   testimony.”   (internal            quotation   marks      and   citations

14   omitted)); see also Mei Chai Ye v. U.S. Dep’t of Justice, 489

15   F.3d 517, 524 (2d Cir. 2007) (“[T]his court has . . . firmly

16   embraced the commonsensical notion that striking similarities

17   between affidavits are an indication that the statements are

18   ‘canned.’”).    Singh also testified that his mother did not

19   attend SADA events; however, his mother’s affidavit stated

20   that she did, or at least that she “used to.”                    When asked to

21   explain this discrepancy, Singh changed his testimony to

22   state both that everyone in his family attended and that his

                                               5
 1   mother attended events before he joined the party.

 2       Given      that   the   record    supports   the   inconsistencies

 3   identified by the IJ, the agency reasonably relied on Singh’s

 4   failure   to     rehabilitate        his   testimony   with   reliable

 5   corroborating     evidence.          “An   applicant’s    failure   to

 6   corroborate his or her testimony may bear on credibility,

 7   because the absence of corroboration in general makes an

8    applicant unable to rehabilitate testimony that has already

9    been called into question.”          Biao Yang v. Gonzales, 496 F.3d

10   268, 273 (2d Cir. 2007).       The affidavits from Singh’s mother,

11   wife, and neighbor were inconsistent with his testimony and

12   the IJ reasonably declined to give weight to these or other

13   letters because his mother and wife were interested witnesses

14   and none of the authors were available for cross-examination.

15   See Y.C. v. Holder, 741 F.3d 324, 332, 334 (2d Cir. 2013)

16   (deferring to agency’s decision to afford little weight to

17   husband’s letter from China).

18       Accordingly, given Singh’s inconsistencies and the lack

19   of reliable corroboration, substantial evidence supports the

20   agency’s adverse credibility determination.              See 8 U.S.C.

21   § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167; Biao Yang,

22   496 F.3d at 273.            That determination is dispositive of

                                           6
1   asylum, withholding of removal, and CAT relief because all

2   three claims were based on the same factual predicate.    See

3   Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).

4       For the foregoing reasons, the petition for review is

5   DENIED.   All pending motions and applications are DENIED and

6   stays VACATED.

7                               FOR THE COURT:
8                               Catherine O’Hagan Wolfe,
9                               Clerk of Court

                                  7