PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 16-6132
ANTHONY FRED MARTIN,
Plaintiff – Appellant,
v.
SUSAN DUFFY,
Defendant – Appellee.
Appeal from the United States District Court for the District of South Carolina, at Florence. David C. Norton, District Judge. (4:15-cv-04947-DCN)
Argued: March 21, 2017 Decided: June 1, 2017
Before GREGORY, Chief Judge, and WYNN and HARRIS, Circuit Judges.
Affirmed in part, reversed in part, and remanded by published opinion. Judge Wynn wrote the opinion, in which Chief Judge Gregory and Judge Harris joined.
ARGUED: Kylie Danelle Barnhart, WEST VIRGINIA UNIVERSITY COLLEGE OF LAW, Morgantown, West Virginia, for Appellant. Andrew Lindemann, DAVIDSON & LINDEMANN, P.A., Columbia, South Carolina, for Appellee. ON BRIEF: Lawrence D. Rosenberg, JONES DAY, Washington, D.C., for Appellant. Andrew Lindemann, DAVIDSON & LINDEMANN, P.A., Columbia, South Carolina, for Appellee. WYNN, Circuit Judge:
Defendant Susan Duffy (“Duffy”), a captain at Perry Correctional Institution
(“Perry CI”)—a state prison within the South Carolina Department of Corrections
system—placed Plaintiff Anthony Fred Martin (“Martin”), an inmate at Perry CI, in
segregation after Martin filed a grievance against a prison sergeant contending that the
sergeant inappropriately touched him during a shakedown. Alleging that his placement in
segregation violated his constitutional rights to freedom from retaliation for filing a
grievance, equal protection, and due process, Martin filed a pro se complaint under 42
U.S.C. § 1983 against Duffy.
The district court dismissed Martin’s complaint for failure to state a claim upon
which relief may be granted. We agree that Martin failed to state claims under the Equal
Protection and Due Process Clauses. But construing Martin’s complaint liberally, as we
must, we conclude that Martin pleaded sufficient facts to state a claim that Duffy violated
Martin’s First Amendment rights by placing him in segregation as retaliation for filing a
grievance. And we further conclude that Duffy is not entitled to qualified immunity from
Martin’s retaliation claim because, under this Court’s precedent, it was clearly established
at the time Duffy placed Martin in segregation that retaliating against an inmate for filing
a grievance violates the inmate’s rights under the First Amendment. Booker v. S.C. Dep’t
of Corr., 855 F.3d 533, 546 (4th Cir. 2017). Accordingly, we reverse, in part, the district
court’s dismissal of Martin’s action.
I.
A.
2 On September 11, 2014, Martin filed an electronic message through the prison kiosk
system, alleging that a prison sergeant inappropriately touched him during a shakedown.
The next day, Duffy removed Martin from the general inmate population and placed him
in a holding cell in the administrative building. Martin alleged that, once in holding, Duffy
“questioned [him] relentlessly about an informal resolution attempt of [his grievance
alleging] inappropriate an[d] unwanted touching ‘battery’ against [the sergeant that Martin]
had filed the day before.” J.A. 4. Martin also alleged that, following Duffy’s questioning,
Duffy placed Martin in pre-hearing detention or “segregation” in an attempt to “maintain
the integrity of [the] investigation” into Martin’s complaint against the sergeant. J.A. 10,
13.
Subsequently, on November 18, 2014, Martin submitted a “Request to Staff
Member” chit to Duffy complaining that “[Duffy] had no justifiable means to lock [him]
away” and that “[i]f an investigation was or is being conducted, no one ha[d] spoken to
[him] concerning [the] matter.” J.A. 15. In this same “Request to Staff Member” chit,
Martin accused Duffy of violating South Carolina Department of Corrections procedure by
reprising against him “for [his] participating in an informal resolution” of his earlier
grievance. J.A. 15. A month later, Duffy responded to Martin, stating that Martin had
been placed under investigation by the Division of Investigations; that he was no longer
under investigation; and that he was currently on the “yard list” to return to the general
population. J.A. 15.
When prison officials arranged for Martin to return to the general inmate population
on December 31, 2014, 110 days after his initial placement in segregation, Martin refused
3 to reenter the general population and instead requested a transfer to another prison “as a
resolution to the situation.” J.A. 5. Later that afternoon, a lieutenant filed an incident
report recounting Martin’s “refus[al] to go to the yard per classifications” and citing Martin
for “[r]efusing to obey” orders. J.A. 16.
Nearly two weeks later, on January 16, 2015, Martin submitted an “Inmate Request”
through the prison’s Offender Management System, reciting his interactions with Duffy,
his allegation that Duffy placed him in segregation “for attempting to informally resolve
an allegation of battery against [a sergeant] by way of the electronic KIOSK,” and his
“attempt[] to informally resolve the issue” with no response. J.A. 10. In response to
Martin’s “Inmate Request,” a prison official notified Martin that he was not under
investigation; that officials believed his allegations had been found invalid by investigators;
and that his refusal to return to the general population had resulted in a “pending charge.”
J.A. 10. Consequently, on January 22, 2015, prison officials held a hearing regarding
Martin’s refusal to return to the general population on December 31, 2014. Martin refused
to attend the hearing. A hearing officer found Martin guilty of the charged offense and
imposed various sanctions.
Approximately five months later, Martin received his requested transfer to Broad
River Correctional Institution. According to Martin, during the 110 days that he remained
in segregation, he never received a hearing regarding his detention, nor was he ever
informed of the progress of any investigation related to the grievance that he had filed.
B.
4 On December 14, 2015, Martin, proceeding pro se, filed a complaint against Duffy
in the United States District Court for the District of South Carolina. In his complaint,
Martin alleged that Duffy’s “unequal treatment” of him was “an act of reprisal, harassment
and retaliation simply because [Martin] had attempted to informally resolve a grievance
[Duffy] did not like.” J.A. 6. Martin also alleged that Duffy’s placement of Martin in
segregation, when other inmates who had similarly “attempted to informally resolve
grievances of inappropriate an[d] unwanted touching” had not been placed in segregation,
violated his right to equal protection. J.A. 6. And Martin alleged two claims sounding in
denial of procedural due process: (1) that his placement in segregation caused him to
generally “suffer[] an atypical and significant hardship” and (2) that his placement in
segregation caused him to lose “good time credits for each month [he was in segregation]
invalidly.” 1 J.A. 6, 10.
On December 30, 2015, a magistrate judge issued a report and recommendation
concluding that Martin’s complaint should be summarily dismissed pursuant to 28 U.S.C.
§ 1915(e)(2)(B). Noting its obligation to construe liberally Martin’s pro se complaint, the
magistrate judge found that Martin failed to state cognizable equal protection and due
process claims under 42 U.S.C. § 1983. In particular, the magistrate judge first found that
Martin failed to state a due process claim because “South Carolina law confers no protected
1 Because Martin’s procedural due process claim concerning good time credits was alleged in documents attached to Martin’s complaint, we construe the complaint to include such a claim. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (stating that “[a] document filed pro se is ‘to be liberally construed’” (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976))).
5 liberty interest upon . . . inmates from being classified or being placed in administrative
segregation.” J.A. 34. And regarding Martin’s equal protection claim, the magistrate judge
found that Martin failed to state a plausible claim because he “provide[d] no factual
allegations to show that [Duffy] treated [Martin] differently than any other similarly
situated inmate or that his placement in segregation . . . resulted from intentional or
purposeful discrimination.” J.A. 35. The magistrate judge’s report and recommendation
did not explicitly address Martin’s retaliation claim, nor did it address Martin’s procedural
due process claim arising from his alleged loss of the opportunity to earn good time credits.
Martin filed an objection to the report and recommendation on January 12, 2016. In
his objection, Martin specifically requested to be allowed to proceed with discovery on his
equal protection claim, again alleging that the unequal treatment he experienced “was the
result of intentional and purposeful discrimination.” J.A. 38. And though Martin did not
specifically set out his other claims in his objection, Martin attached an “Amended
Complaint” to his objection restating his due process claim relating to his allegedly
improper segregation without a hearing and his First Amendment retaliation claim,
recounting the facts in a substantially similar manner as his first complaint.
After conducting a de novo review, the district court affirmed the magistrate judge’s
report and recommendation in its entirety and dismissed Martin’s complaint without
prejudice on January 20, 2016. Martin timely filed a notice of appeal.
II.
As an initial matter, we must determine whether this Court may properly exercise
appellate jurisdiction over Martin’s case. Duffy argues that we lack jurisdiction to entertain
6 Martin’s appeal for two reasons: first, because Martin waived his right to appellate review
when he failed to file specific objections to the magistrate judge’s report and
recommendation concluding that Martin failed to state claims upon which relief could be
granted; and second, because the district court’s dismissal of Martin’s complaint without
prejudice is not a final and appealable order. We will discuss both of these contentions in
turn.
1.
A plaintiff is “deemed to have waived an objection to a magistrate judge’s report if
[he] do[es] not present [his] claims to the district court.” United States v. Benton, 523 F.3d
424, 428 (4th Cir. 2008) (“Failure to raise an argument before the district court typically
results in the waiver of that argument on appeal.”). In order “to preserve for appeal an
issue in a magistrate judge’s report, a party must object to the finding or recommendation
on that issue with sufficient specificity so as reasonably to alert the district court of the true
ground for the objection.” United States v. Midgette, 478 F.3d 616, 622 (4th Cir. 2007).
Even so, when confronted with the objection of a pro se litigant, we must also be mindful
of our responsibility to construe pro se filings liberally. See Erickson, 551 U.S. at 94.
As set out earlier, although Martin identified only his equal protection claim in his
objection to the magistrate’s report and recommendation, Martin also attached an
“Amended Complaint” that restated all of his claims with the exception of his due process
claim relating to his alleged loss of the opportunity to accrue good time credits. Because
(1) we must liberally construe Martin’s objection and (2) Martin presented to the district
court anew in the attached “Amended Complaint” his claims of First Amendment
7 retaliation, equal protection, and due process relating to his segregation, we conclude
Martin sufficiently alerted the district court that he believed the magistrate judge erred in
recommending dismissal of those claims. However, because Martin did not incorporate
his due process claim regarding his loss of the opportunity to earn good time credits in his
objection or “Amended Complaint,” we find that Martin has waived the right to challenge
on appeal the dismissal of that claim.
2.
We further conclude that the district court’s dismissal of Martin’s complaint without
prejudice did not deprive this Court of jurisdiction to decide Martin’s appeal. “Article III
courts are courts of limited jurisdiction, possessing only the authority granted by Congress
and the Constitution.” United States ex rel. Lutz v. United States, 853 F.3d 131, 136 (4th
Cir. 2017). “Generally, a party may only appeal an order that is final, that is, nothing
remains for the district court to do except execute the judgment.” Id. at 136–37 (citing 28
U.S.C. § 1291; Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 103 (2009)). Because
“[a]n order which dismisses a complaint without expressly dismissing the action is
[generally] not . . . an appealable order,” a plaintiff generally may not appeal the dismissal
of his complaint without prejudice. Domino Sugar Corp. v. Sugar Workers Local Union
392, 10 F.3d 1064, 1066 (4th Cir. 1993) (alterations in original) (internal quotation marks
omitted) (quoting Ruby v. Sec’y of the U.S. Navy, 365 F.2d 385, 387 (9th Cir. 1966)).
However, a district court’s dismissal of a plaintiff’s complaint without prejudice will not
bar the plaintiff’s appeal when “the grounds for dismissal clearly indicate that ‘no
amendment [to the complaint] could cure the defects in the plaintiff’s case.’” Id. at 1067
8 (quoting Coniston Corp. v. Vill. of Hoffman Estates, 844 F.2d 461, 463 (7th Cir. 1988)).
Thus, in assessing whether the district court’s dismissal of Martin’s complaint constitutes
a final, appealable order, we must “evaluate the particular grounds for dismissal in
[Martin’s] case to determine whether [Martin] could save his action by merely amending
his complaint.” Id. at 1066–67; see also Chao v. Rivendell Woods, Inc., 415 F.3d 342, 345
(4th Cir. 2005) (interpreting Domino Sugar to “require[ an appellate panel] to examine the
appealability of a dismissal without prejudice based on the specific facts of the case in
order to guard against piecemeal litigation and repetitive appeals”).
On the specific facts before us, we find that the district court’s dismissal order
qualifies as an appealable order because Martin cannot save his action by merely amending
his complaint. Regarding the First Amendment retaliation claim, in particular, Martin and
Duffy agree that the district court did not address that claim in its order dismissing Martin’s
complaint without prejudice. Although a district court’s failure to address a claim may
foreclose appellate review of that claim, courts have found that an order that fails to
explicitly address or dispose of all claims presented to the court may nevertheless qualify
as a final, appealable order “[i]f the language used [in the order] is calculated to conclude
all the claims before the district court,” Munson Transp., Inc. v. Hajjar, 148 F.3d 711, 714
(7th Cir. 1998) (citing Armstrong v. Trico Marine, Inc., 923 F.2d 55, 58 (5th Cir. 1991)),
or “where ‘the district court obviously was not trying to adjudicate fewer than all the
pleaded claims,’” Perkin-Elmer Corp. v. Computervision Corp., 680 F.2d 669, 670 (9th
Cir. 1982) (quoting Lockwood v. Wolf Corp., 629 F.2d 603, 608 (9th Cir. 1980)); see also
9 Moreau v. Harris County, 158 F.3d 241, 244 (5th Cir. 1998) (“A judgment reflecting an
intent to dispose of all issues before the district court is final.”).
Although the magistrate judge did not analyze Martin’s retaliation claim within the
framework this Court has set out for evaluating First Amendment retaliation claims, see
infra Part III.A.1, the magistrate judge looked to this Court’s precedent in Adams v. Rice,
40 F.3d 72 (4th Cir. 1994), for the proposition that “the Constitution creates no entitlement
to grievance procedures or access to any such procedure voluntarily established by a state,”
40 F.3d at 75, as well as Ashann-Ra v. Virginia, 112 F. Supp. 2d 559 (W.D. Va. 2000), in
which a district court in this circuit held that “a prison official’s failure to comply with the
state’s grievance procedure is not actionable under [Section] 1983,” 112 F. Supp. 2d at
569. The district court thereafter affirmed the magistrate judge’s analysis of the applicable
case law.
When the district court rendered its decision, Adams had been construed by district
courts in this circuit to preclude claims by inmates alleging prison officials retaliated
against them for filing grievances. See, e.g., Pearson v. Simms, 345 F. Supp. 2d 515, 520
(D. Md. 2003); Boblett v. Angelone, 942 F. Supp. 251, 255 (W.D. Va. 1996) (concluding
that, under Adams, “a state grievance procedure does not confer any substantive right upon
prison inmates,” and holding “that retaliation for lodging complaints via . . . a grievance
procedure does not state a [retaliation] claim . . . , which requires that the retaliation come
in response to the exercise of a fundamental right”). Accordingly, we conclude that the
magistrate judge’s invocation of Adams and its progeny—and the district court’s
affirmance of the magistrate’s report and recommendation—made clear that the court
10 intended its order to dispose of Martin’s First Amendment retaliation claim on grounds that
Adams foreclosed such claims as a matter of law. Therefore, because the district court’s
order “clearly preclude[d] amendment,” we may review Martin’s retaliation claim. Cf.
Goode v. Cent. Va. Legal Aid Soc’y, Inc., 807 F.3d 619, 630 (4th Cir. 2015) (holding that
appellate panel lacked jurisdiction where district court’s “grounds for dismissal in this case
did not clearly preclude amendment”).
Second, Martin’s reformulation of his equal protection claim in his “Amended
Complaint” marked his third attempt to state a claim for an equal protection violation. In
particular, in addition to his original complaint and the “Amended Complaint” that Martin
attached to his objection, Martin earlier in 2015 filed a substantially similar action in the
same district court—alleging virtually identical facts—that was likewise dismissed without
prejudice. See Martin v. Duffy, No. 4:15–cv–2104, 2015 WL 11121380 (D.S.C. Aug. 3,
2015) (affirming magistrate judge’s report and recommendation and dismissing Martin’s
complaint without prejudice); Martin v. Duffy, No. 4:15–2104, 2015 WL 11121379, at *3
(D.S.C. June 30, 2015) (recommending that complaint be dismissed without prejudice
because Martin “fail[ed] to plead facts that would support a plausible equal protection
claim”); see also Martin v. Duffy, 623 F. App’x 104 (4th Cir. 2015) (per curiam)
(concluding that deficiencies in Martin’s complaint could be remedied by filing an
amended complaint and dismissing appeal for lack of jurisdiction). Such repeated,
ineffective attempts at amendment suggest that further amendment of the complaint would
be futile. See United States ex rel. Willard v. Humana Health Plan of Tex., Inc., 336 F.3d
375, 387 (5th Cir. 2003) (finding that allowing plaintiff a third chance to amend would
11 prove futile where plaintiff had two opportunities to amend his complaint and there was no
indication that he would be able to allege the necessary elements of a fraud claim). As
district courts have thrice concluded that Martin has been unable to allege sufficient facts
to establish a viable claim under the Equal Protection Clause, we find that Martin’s
pleading deficiency cannot be cured by amendment of his complaint. Accordingly, we
maintain jurisdiction to review the dismissal of Martin’s equal protection claim. See
Domino Sugar, 10 F.3d at 1066.
Finally, regarding Martin’s procedural due process claim stemming from his
placement in segregation, the magistrate judge dismissed that claim not because Martin
failed to allege sufficient facts to state a plausible claim, but because, as a matter of law,
“South Carolina law confers no protected liberty interest upon . . . inmates from being
classified or being placed in administrative segregation.” J.A. 34. And the district court
summarily affirmed the magistrate judge’s report and recommendation, finding that the
magistrate judge’s report accurately summarized the applicable law and Martin’s case.
Therefore, by adopting the report and recommendation of the magistrate judge, the district
court’s order “clearly preclude[d] [Martin] from amending his complaint to correct any
pleading inadequacy” relating to that claim. See Goode, 807 F.3d at 628. Thus, we may
also review Martin’s procedural due process claim.
In sum, the district court’s dismissal of Martin’s complaint without prejudice is a
final and appealable order.
III.
12 On appeal, Martin argues that the district court erred in failing to address his First
Amendment retaliation claim and in dismissing his remaining claims pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(ii), which provides that a “court shall dismiss [a prisoner’s] case at any
time if the court determines that . . . the action or appeal . . . fails to state a claim on which
relief may be granted.” “The standards for reviewing a dismissal under [Section]
1915(e)(2)(B)(ii) are the same as those for reviewing a dismissal under Federal Rule of
Civil Procedure 12(b)(6).” De’Lonta v. Angelone, 330 F.3d 630, 633 (4th Cir. 2003).
Therefore, we review a district court’s dismissal of a complaint pursuant to Section
1915(e)(2)(B)(ii) de novo. Moore v. Bennette, 517 F.3d 717, 728 (4th Cir. 2008).
A complaint should not be dismissed for failure to state a claim “unless ‘after
accepting all well-pleaded allegations in the plaintiff’s complaint as true and drawing all
reasonable factual inferences from those facts in the plaintiff’s favor, it appears certain that
the plaintiff cannot prove any set of facts in support of his claim entitling him to relief.’”
Veney v. Wyche, 293 F.3d 726, 730 (4th Cir. 2002) (quoting Edwards v. City of Goldsboro,
178 F.3d 231, 244 (4th Cir. 1999)). Additionally, “[l]iberal construction of the pleadings
is particularly appropriate where, as here, there is a pro se complaint raising civil rights
issues.” Smith v. Smith, 589 F.3d 736, 738 (4th Cir. 2009) (alteration in original) (internal
quotation marks omitted) (quoting Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978)).
Nonetheless, “[w]e are not required . . . ‘to accept as true allegations that are merely
conclusory, unwarranted deductions of fact, or unreasonable inferences.’” Veney, 293 F.3d
at 730 (quoting Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001)).
13 With these principles in mind, we now turn to the question of whether Martin’s
complaint sufficiently alleged cognizable claims for (1) First Amendment retaliation,
(2) denial of equal protection, and (3) denial of procedural due process regarding his
placement in segregation.
A.
1.
Martin first complains that Duffy violated his First Amendment rights by
“repris[ing], harass[ing,] and retaliat[ing] [against him] simply because [he] had attempted
to informally resolve a grievance.” J.A. 6. In order to state a colorable retaliation claim
under Section 1983, a plaintiff “must allege that (1) []he engaged in protected First
Amendment activity, (2) the defendant[] took some action that adversely affected [his]
First Amendment rights, and (3) there was a causal relationship between [his] protected
activity and the defendant[’s] conduct.” Constantine v. Rectors & Visitors of George
Mason Univ., 411 F.3d 474, 499 (4th Cir. 2005); see also Hill v. Lappin, 630 F.3d 468, 472
(6th Cir. 2010) (citing Thaddeus-X v. Blatter, 175 F.3d 378, 394, 398 (6th Cir. 1999) (en
banc)) (outlining substantially similar elements for a First Amendment retaliation cause of
action by an inmate alleging retaliation for filing grievances against prison staff). Based
on the facts Martin has alleged in his complaint, we conclude that Martin has stated a
plausible First Amendment retaliation claim against Duffy.
First, Martin has sufficiently alleged that he engaged in protected First Amendment
activity. Constantine, 411 F.3d at 499. “The First Amendment protects the right ‘to
petition the Government for a redress of grievances,’” Kirby v. City of Elizabeth City, 388
14 F.3d 440, 448 (4th Cir. 2004) (quoting U.S. Const. amend. I), and the Supreme Court has
recognized that prisoners retain this constitutional right while they are incarcerated, Turner
v. Safley, 482 U.S. 78, 84 (1987) (“[P]risoners retain the constitutional right to petition the
government for the redress of grievances . . . .”). In his complaint, Martin stated that he
“filed an electronic kiosk message against [a prison sergeant] for inappropriate and
unwanted touching ‘battery.’” J.A. 4. Thus, by alleging that he filed a grievance against a
sergeant for battery, Martin has sufficiently pleaded that he engaged in protected conduct. 2
See Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012) (“The filing of an inmate
grievance is protected conduct.”); Herron v. Harrison, 203 F.3d 410, 415 (6th Cir. 2000)
(“An inmate has an undisputed First Amendment right to file grievances against prison
officials on his own behalf.”).
Second, Martin has adequately pleaded that Duffy’s placement of Martin in
segregation adversely affected his First Amendment rights. Constantine, 411 F.3d at 499.
“[F]or purposes of a First Amendment retaliation claim under [Section] 1983, a plaintiff
suffers adverse action if the defendant’s allegedly retaliatory conduct would likely deter ‘a
person of ordinary firmness’ from the exercise of First Amendment rights.” Id. at 500
2 Though, in his appellate briefs, Martin grounds his retaliation claim in his First Amendment right to freedom of speech, “we note that [Martin] also generally alleged a violation of the First Amendment” in claiming that Duffy retaliated against him for filing a grievance, and that “courts are obligated to ‘liberally construe[]’ pro se complaints, ‘however inartfully pleaded.’” Booker, 855 F.3d at 540 (quoting Erickson, 551 U.S. at 94). Accordingly, we decline to constrain our analysis of Martin’s claim to the Free Speech Clause of the First Amendment, but instead evaluate Martin’s claim as properly “rooted in the First Amendment’s Petition Clause.” Id.
15 (quoting Washington v. County of Rockland, 373 F.3d 310, 320 (2d Cir. 2004)). A
plaintiff’s “actual response to the retaliatory conduct” is not dispositive of the question of
whether such action would likely deter a person of ordinary firmness. Id. Here, Martin
alleged that, after he filed his grievance, Duffy “placed [him] inside of the administrative
building’s holding cell and placed [him] on segregation after she questioned [him]
relentlessly about an informal resolution attempt of [the grievance he] had filed the day
before.” J.A. 4. Further, Martin alleged that he remained in segregation for 110 days
before being allowed to return to the general prison population. Certainly, “placing an
inmate in administrative segregation ‘could deter a person of ordinary firmness from
exercising his First Amendment rights.’” Herron, 203 F.3d at 416 (quoting Dunham-Bey
v. Holden, 198 F.3d 244, 1999 WL 1023730, at *2 (6th Cir. Nov. 5, 1999) (unpublished
table disposition)); see also Watison, 668 F.3d at 1115 (finding that placement in
administrative segregation constitutes an adverse action); Allah v. Seiverling, 229 F.3d 220,
225 (3d Cir. 2000) (finding that plaintiff’s confinement in administrative segregation
resulting in reduced access to amenities and programs would allow a fact finder to conclude
that placement in administrative segregation amounted to an adverse action). Accordingly,
Martin has sufficiently alleged that Duffy took adverse action against him by confining
him in segregation.
Lastly, we find that Martin has likewise sufficiently alleged that Duffy’s retaliatory
act of placing him in segregation “was taken in response to the exercise of a constitutionally
protected right.” Adams, 40 F.3d at 75. Again, in his complaint, Martin alleged that, “[o]n
the morning of September 12, 2014, [Duffy] placed [him in segregation] after she
16 questioned [him] relentlessly about an informal resolution attempt of [the grievance
Martin] had filed the day before.” J.A. 4. Martin’s allegation that Duffy took this adverse
action the day after he filed a grievance against a prison sergeant, “as an act of reprisal,”
satisfies the third element necessary to state a retaliation claim. J.A. 5; see also Watison,
668 F.3d at 1115 (finding that plaintiff alleged a sufficient connection between defendants’
retaliatory actions and plaintiff’s protected activity where plaintiff alleged defendants
“took the[] adverse actions shortly after, and ‘[i]n retaliation’ for, [plaintiff’s] filing of
grievances against [one of the defendants]” (second alteration in original)).
Accordingly, Martin has made out a prima facie claim of First Amendment
retaliation, having alleged that he engaged in protected conduct by filing a grievance—i.e.,
petitioning for a redress of grievances; that he was subsequently placed in segregation—a
placement that might deter a person of ordinary firmness from filing grievances; and that
his protected activity and Duffy’s decision to place him in segregation were causally
linked.
2.
Duffy argues that even if Martin pleaded sufficient facts to state a First Amendment
retaliation claim, she is entitled to qualified immunity. Under Section 1915, courts are
directed to “dismiss [a] case at any time if the court determines that . . . the action or
appeal . . . seeks monetary relief against a defendant who is immune from such relief.” 28
U.S.C. § 1915(e)(2)(B)(iii) (emphasis added). Because we “may affirm the dismissal by
the district court on the basis of any ground supported by the record even if it is not the
basis relied upon by the district court,” Ostrzenski v. Seigel, 177 F.3d 245, 253 (4th Cir.
17 1999), and because Martin’s pleadings are adequately developed for us to decide the issue,
we now turn to Duffy’s qualified immunity defense. 3
“[Q]ualified immunity protects government officials from liability for civil damages
insofar as their conduct does not violate clearly established statutory or constitutional rights
of which a reasonable person would have known.” Crouse v. Town of Moncks Corner, 848
F.3d 576, 583 (4th Cir. 2017) (alteration in original) (internal quotation marks omitted)
(quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)). In order for a plaintiff to
overcome an official’s qualified immunity defense, the plaintiff must demonstrate “(1) that
the official violated a statutory or constitutional right, and (2) that the right was ‘clearly
established’ at the time of the challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 735
(2011) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). An “official’s conduct
violates clearly established law when, at the time of the challenged conduct, ‘[t]he contours
of [a] right [are] sufficiently clear’ that every ‘reasonable official would have understood
that what he is doing violates that right.’” Id. at 741 (alterations in original) (quoting
Anderson v. Creighton, 483 U.S. 635, 640 (1987)). Thus, in determining whether a right
3 Martin contends that that it would be inappropriate for this Court to address Duffy’s “improperly preserved affirmative defense” because “Duffy has waived her claim of qualified immunity by failing to raise it prior to appeal.” Appellant’s Reply Br. at 24– 25. Martin’s argument is simply unavailing. Section 1915 prescribes pre-answer review of a complaint. See Michau v. Charleston County, 434 F.3d 725, 727 (4th Cir. 2006) (“The magistrate judge conducted a pre-answer review of the complaints in accordance with the requirements of the PLRA and the [in forma pauperis] statute.”). Accordingly, Duffy cannot be faulted for failing to preserve her defense when she was not yet required to file an answer and has not done so. Because Duffy has raised the defense on appeal, and such defense may be properly considered by this court under 28 U.S.C. § 1915(e)(2)(B)(iii), we will review Duffy’s qualified immunity defense.
18 is clearly established, “a court does not need to find ‘a case directly on point, but existing
precedent must have placed the statutory or constitutional question beyond debate.’”
Crouse, 848 F.3d at 583 (quoting al-Kidd, 563 U.S. at 741).
Beginning with the first prong, as discussed above, supra Part III.A.1, “the facts
alleged [by Martin] show [Duffy’s] conduct violated a constitutional right,” Pearson, 555
U.S. at 232 (internal quotation marks omitted) (quoting Saucier v. Katz, 533 U.S. 194, 201
(2001))—namely, Martin’s First Amendment right to be free from retaliation for filing a
grievance. Thus, the only question that remains for this Court to decide is “whether the
right at issue was ‘clearly established’ at the time of [Duffy’s] alleged misconduct.” Id.
In Booker, this Court held that an inmate’s “right to file a prison grievance free from
retaliation was clearly established under the First Amendment” at least as far back in time
as 2010—the year in which the defendant’s conduct in Booker took place. See 855 F.3d at
536, 545. Because Martin’s First Amendment right to be free from retaliation by prison
officials for filing a grievance was clearly established in 2010, see id. at 545, Duffy—
whose alleged conduct took place in 2014—is not entitled to qualified immunity.
Accordingly, we conclude that the district court erred in dismissing Martin’s First
Amendment retaliation claim.
B.
Martin next argues that the district court erred in dismissing his equal protection
claim against Duffy. We disagree.
The Equal Protection Clause of the Fourteenth Amendment states that “[n]o State
shall . . . deny to any person within its jurisdiction the equal protection of the laws.” U.S.
19 Const. amend. XIV, § 1. “The purpose of the [E]qual [P]rotection [C]lause . . . is to secure
every person within the State’s jurisdiction against intentional and arbitrary
discrimination.” King v. Rubenstein, 825 F.3d 206, 220 (4th Cir. 2016) (internal quotation
marks omitted) (quoting Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000)). “To
succeed on an equal protection claim, a plaintiff must first demonstrate that he has been
treated differently from others with whom he is similarly situated and that the unequal
treatment was the result of intentional or purposeful discrimination.” Morrison v.
Garraghty, 239 F.3d 648, 654 (4th Cir. 2001). Once the plaintiff makes this showing, “the
court proceeds to determine whether the disparity in treatment can be justified under the
requisite level of scrutiny.” Id. The plaintiff must plead sufficient facts to satisfy each of
these requirements in order to state a cognizable equal protection claim. Veney, 293 F.3d
at 731.
In his complaint, Martin alleged that the “unequal treatment” he had experienced
“was the result of intentional and purposeful discrimination as an act of reprisal,
harassment and retaliation simply because [he] had attempted to informally resolve a
grievance [that Duffy] did not like.” J.A. 6 (emphasis added). And in his “Amended
Complaint,” Martin similarly alleged that “[t]he unequal treatment was the result of
intentional and purposeful discrimination, a reprisal, an act of harassment and retaliation
simply because the plaintiff participated in the informal resolution of a grievance [Duffy]
did not like.” J.A. 44 (emphasis added). Martin’s claim that Duffy treated him differently
than other inmates who had filed similar grievances, in retaliation for Martin exercising
his right to petition for redress of grievances, is, at its core, a First Amendment retaliation
20 claim. See Kirby, 388 F.3d at 447 (rejecting police officer’s claim that supervisors, by
reprimanding officer after he testified against a co-worker in a grievance proceeding,
denied officer equal protection because “[t]he claims based on the allegation that [the
officer] was treated differently in retaliation for his speech are, at their core, free-speech
retaliation claims”). Thus, as alleged, Martin’s “equal protection claim is best
characterized as a mere rewording of his First Amendment retaliation claim.” Edwards,
178 F.3d at 250; see supra Part III.A.1. In such circumstances, “[a] pure or generic
retaliation claim . . . does not implicate the Equal Protection Clause.” Edwards, 178 F.3d
at 250 (internal quotation marks omitted) (quoting Watkins v. Bowden, 105 F.3d 1344,
1354 (11th Cir. 1997)).
In sum, because “all allegations in the complaint point to the conclusion that the
[segregation] was in retaliation for [Martin’s] exercise of his right[] to [petition] under the
First Amendment,” id., we conclude that the district court did not err in dismissing Martin’s
equal protection claim.
C.
Martin also appeals the dismissal of his procedural due process claim premised on
his placement in segregation without a hearing. We again affirm the district court’s
dismissal of Martin’s claim, albeit on different grounds than those relied upon by the
district court. See Ostrzenski, 177 F.3d at 253.
The Due Process Clause of the Fourteenth Amendment prohibits states from
“depriv[ing] any person of life, liberty, or property, without due process of law.” U.S.
Const. amend. XIV, § 1. “To state a procedural due process [claim], a plaintiff must [first]
21 identify a protected liberty or property interest and [then] demonstrate deprivation of that
interest without due process of law.” Prieto v. Clarke, 780 F.3d 245, 248 (4th Cir. 2015).
Put differently, a prisoner claiming a violation of his right to procedural due process must
show: (1) that there is a “state statute, regulation, or policy [that] creates such a liberty
interest,” and (2) that “the denial of such an interest ‘imposes atypical and significant
hardship on the inmate in relation to the ordinary incidents of prison life.’” Id. at 248–49
(quoting Sandin v. Conner, 515 U.S. 472, 484 (1995)). An inmate who fails to satisfy these
two requirements “cannot ‘invoke the procedural protections of the Due Process Clause.’”
Id. at 248 (quoting Meachum v. Fano, 427 U.S. 215, 224 (1976)).
In his complaint, Martin alleged that he remained in segregation for 110 days
without receiving a hearing. Because South Carolina Department of Corrections procedure
mandated review of Martin’s placement in pre-hearing detention or “segregation” within
seventy-two hours of his initial placement and prescribed an initial detention of up to thirty
days—with the option of a single thirty-day extension 4—the complaint adequately alleged
the existence of a state policy creating a protected liberty interest. Incumaa v. Stirling, 791
F.3d 517, 527 (4th Cir. 2015) (“[I]nmates must first establish that an interest in avoiding
onerous or restrictive confinement conditions ‘arise[s] from state policies or regulations’
4 Although Duffy maintains that Martin’s request for judicial notice of South Carolina Department of Corrections’ procedure is an improper attempt to supplement the record, we may properly take judicial notice of this policy as a public record under Federal Rule of Evidence 201(d). See Philips v. Pitt Cty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009).
22 (e.g., a regulation mandating periodic review).” (second alteration in original) (quoting
Prieto, 780 F.3d at 249)).
Turning to the second prong, we observe that “[w]hether confinement conditions
are atypical and substantially harsh ‘in relation to the ordinary incidents of prison life’ is a
‘necessarily . . . fact specific’ comparative exercise.’” Id. (quoting Beverati v. Smith, 120
F.3d 500, 502, 503 (4th Cir. 1997)). Although Martin’s complaint included the conclusory
allegation that he “suffered an atypical and significant hardship” as the result of his
placement in segregation, J.A. 6, the complaint did not identify any conditions Martin
experienced that gave rise to his alleged hardship. Such “[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not suffice [to
state a plausible claim to relief]. . . . While legal conclusions can provide the framework
of a complaint, they must be supported by factual allegations.” Ashcroft v. Iqbal, 556 U.S.
662, 678–79 (2009). Because Martin’s complaint does not include any factual allegations
establishing that he experienced conditions during his temporary placement in segregation
that “were atypical and significantly harsh compared to [those of] the general population,”
Incumaa, 791 F.3d at 528–29 (noting that the general prison population is the “touchstone”
in cases where inmate was sentenced to confinement in the general population and later
transferred to security detention), Martin failed to allege sufficient facts to state a plausible
due process claim.
IV.
For the reasons stated herein, the judgment of the district court is
23 AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
24