David Pepe v. Marirosa Lamas, 679 F. App'x 173

Pepe, an inmate at SCI–Benner Township, filed a grievance challenging a misconduct report issued by kitchen supervisor Michael Prevost and sought reinstatement to his kitchen job after being removed.
Prevost refused to reinstate Pepe; Pepe alleged the refusal was retaliation for filing the grievance and received conflicting answers from other prison officials about reinstatement.
Pepe sued under 42 U.S.C. § 1983 alleging First Amendment retaliation and named Prevost and other prison officials; the District Court dismissed the retaliation claims in part.
The District Court accepted Prevost’s contention that Pepe would have been placed on a waiting list regardless of the grievance and dismissed the retaliation claim against Prevost based on the “same decision” defense; it dismissed claims against other officials for lack of personal involvement.
On appeal, the Third Circuit reviewed dismissal under Rule 12(b)(6), treated Pepe’s grievance as protected activity, and found the complaint plausibly alleged an adverse action and causation based on timing and conflicting statements.
The Third Circuit vacated the dismissal as to Prevost, holding the “same decision” affirmative defense was inappropriate to resolve at the pleading stage and remanded for further proceedings; dismissals as to other officials were affirmed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether filing a prison grievance is protected activity for First Amendment retaliation	Pepe: grievance is protected speech	Defendants did not dispute protection here	Held: grievance is protected (citing Mitchell)
Whether denial of reinstatement is an adverse action	Pepe: loss of job reinstatement is adverse and can deter ordinary person	Defendants: placement on waiting list is benign/not retaliatory	Held: alleged refusal to reinstate plausibly an adverse action (citing Dewalt)
Whether Pepe plausibly alleged causation between grievance and denial	Pepe: timing and conflicting officials’ statements create inference of retaliatory motive	Prevost: would have placed Pepe on waiting list regardless (“same decision”)	Held: timing and facts plausibly plead causation at 12(b)(6); inference survives pleading stage
Whether the district court may resolve the “same decision” affirmative defense on a motion to dismiss	Pepe: burden-shifting affirmative defense requires factual development; inappropriate at pleading stage	Prevost: same decision shown; dismissal appropriate	Held: court may not resolve same-decision defense at pleading stage; vacated dismissal as to Prevost

Grier v. Klem, 591 F.3d 672 (3d Cir. 2010) (standard of review for motion to dismiss)
Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (pleading must state plausible claim)
Mitchell v. Horn, 318 F.3d 523 (3d Cir. 2003) (filing prison grievance is First Amendment protected activity)
Rauser v. Horn, 241 F.3d 330 (3d Cir. 2001) (elements of prisoner First Amendment retaliation claim and burden-shifting)
Dewalt v. Carter, 224 F.3d 607 (7th Cir. 2000) (loss of prison job can constitute adverse action for retaliation claim)
In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410 (3d Cir. 1997) (limits on considering matters outside complaint on motion to dismiss)
Thomas v. Eby, 481 F.3d 434 (6th Cir. 2007) (affirmative defenses generally inappropriate to resolve at pleading stage)
Farrell v. Planters Lifesavers Co., 206 F.3d 271 (3d Cir. 2000) (timing plus other evidence can support inference of causation)
Rode v. Dellarciprete, 845 F.2d 1195 (3d Cir. 1988) (personal involvement required for § 1983 liability)
James v. Quinlan, 866 F.2d 627 (3d Cir. 1989) (property/liberty interest analysis not required for First Amendment retaliation claims)