EMMANUEL KING SHAW v. T. S. FOREMAN, Unit Manager; M. MURPHY, Unit Manager; T. LEABOUGH, Hearings Officer; N. LEACH, Counselor; F. L. ADAMS, Lieutenant
No. 20-7185
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
February 3, 2023
PUBLISHED
Argued: October 27, 2022 Decided: February 3, 2023
Before GREGORY, Chief Judge, WYNN, Circuit Judge, and FLOYD, Senior Circuit Judge.
Reversed and remanded by published opinion. Senior Judge Floyd wrote the opinion in which Chief Judge Gregory and Judge Wynn joined.
ARGUED: Daniel Steven Severson, KELLOGG HANSEN TODD FIGEL & FREDERICK PLLC, Washington, D.C., for Appellant. Lucas W.E. Croslow, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellees. ON BRIEF: Jason S. Miyares, Attorney General, Charles H. Slemp, III, Chief Deputy Attorney General, Andrew N. Ferguson, Solicitor General, Erika L. Maley, Principal Deputy Solicitor General, M. Jordan Minot, Assistant Solicitor General, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellees.
Plaintiff-Appellant Emmanuel King Shaw was an inmate at Sussex I State Prison (SISP) in 2017. A female correctional officer at SISP charged Shaw with a disciplinary offense, alleging that he directed lewd behavior toward her in the prison showers. Shaw denied the allegation, contending that security-camera footage would vindicate him. Subsequent to what Shaw alleged was a defective disciplinary-hearing process, prison officials found that he committed the offense and transferred him to a maximum-security facility. Based on the defects that Shaw perceived in the hearing process and subsequent transfer, he commenced a pro se civil action, levying a procedural due process claim and a First Amendment retaliation claim against Defendants-Appellees T.S. Foreman, M. Murphy, T. Leabough, N. Leach, and F.L. Adams (collectively, the “Prison Officials“). The district court dismissed Shaw‘s procedural due process claim, then granted summary judgment—pre-discovery—in favor of the Prison Officials on the remaining First Amendment retaliation claim. Shaw now appeals. For the reasons that follow, we reverse and remand.
I.
Shaw is presently serving a more than fifty-year sentence for abduction, robbery, burglary, and use of a firearm in commission of a felony. In 2017, he was housed in SISP. On July 19, 2017, a female correctional officer at SISP charged him with a disciplinary offense for allegedly masturbating in her direction while he showered. He denied the allegation, arguing that security-camera footage would prove his innocence. The prison
The disciplinary hearing was postponed, and Shaw, still in segregation, commenced a hunger strike to protest the delay. According to Shaw, SISP‘s internal policies mandated that he receive a hearing within fifteen days of his alleged violation. From August 2 to August 10, he filed multiple internal complaints and sent multiple letters to correctional officials regarding the delay. These included a letter sent on August 9 to the Offender Discipline Unit Manager at the Virginia Department of Corrections in Richmond, Virginia. According to Shaw, prison staff intercepted and opened some of these letters before returning them to him on the pretense of a faulty destination address.
A hearing officer eventually conducted Shaw‘s disciplinary hearing on August 17, 2017. According to Shaw, the officer refused to review exculpatory security-camera footage and proceeded to find that Shaw committed the charged offense—largely basing that finding on testimony from the charging officer. Given Shaw‘s history of disciplinary charges relating to “lewd or obscene acts against staff, particularly female staff,” he qualified for transfer to a higher-security facility. J.A. 188. SISP transferred Shaw to Red Onion State Prison, a maximum-security prison, on September 18, 2017.
Proceeding pro se, Shaw sued the Prison Officials on October 11, 2018, alleging a violation of his procedural due process rights based on their failure to provide him with a timely disciplinary hearing—and his relegation to disciplinary segregation throughout the delay. He also alleged First Amendment retaliation, arguing (1) that he engaged in protected activity by filing internal complaints and by sending various letters, including his
The district court dismissed Shaw‘s procedural due process claim pursuant to
Regarding the dismissed due process claim, the Prison Officials respond that (1) Shaw‘s theory of the claim on appeal differs from what he pled before the district court, and is therefore waived, and (2) qualified immunity bars his new theory of the claim. Regarding the retaliation claim, the Prison Officials respond that (1) Shaw failed to offer any evidence of a causal link between his protected activity and their alleged retaliation, and (2) the district court did not abuse its discretion by not ordering discovery because Shaw did not request it.
A.
This Court reviews de novo a district court‘s dismissal for failure to state a claim under
B.
The Due Process Clause of the
Here, Shaw plausibly alleged a violation of his procedural due process rights. He seems to concede on appeal that his temporary assignment to administrative segregation does not give rise to an actionable liberty interest. But avoiding transfer to a maximum-security prison suffices. As recognized by the Supreme Court, maximum-security facilities like Red Onion have “highly restrictive conditions, designed to segregate the most dangerous prisoners from the general prison population.” Wilkinson v. Austin, 545 U.S. 209, 213 (2005). Accordingly, incarceration in a maximum-security “environment [is] so atypical and significant that it would give rise to a liberty interest ‘under any plausible baseline.‘” Incumaa v. Stirling, 791 F.3d 517, 530 (4th Cir. 2015) (quoting Wilkinson, 545 U.S. at 223).
The Prison Officials argue that when Shaw presented his theory of a procedural due process violation to the district court, it revolved exclusively around his placement in administrative segregation, and not around his transfer in the wake of a defective hearing, so his theory of liability on appeal was waived. It is true that, in the pled claim itself, Shaw seemed to emphasize administrative segregation as his purported liberty interest, and a delayed hearing as the procedural defect. But the factual allegations in his complaint
We acknowledge that the leniency with which we treat pro se litigants’ pleadings in the civil rights context may marginally increase burdens on defendants—necessarily requiring their thoughtful consideration of all factual allegations, and not just expressly pled claims. But context demands this searching treatment, for its absence risks exposing indigent, incarcerated persons to injustices that we cannot condone.
Notably, the Prison Officials argue that qualified immunity bars Shaw‘s procedural due process claim. The district court did not reach this question, and we decline to usurp that court‘s function as the body of first review. See Robinson v. Equifax Info. Servs., LLC, 560 F.3d 235, 242 (4th Cir. 2009) (“Absent exceptional circumstances, . . . we do not consider issues raised for the first time on appeal.“) (quoting Volvo Const. Equip. N. Am., Inc. v. CLM Equip. Co., 386 F.3d 581, 603 (4th Cir. 2004)). Thus, we do not now decide
III.
A.
This Court reviews a district court‘s pre-discovery grant of summary judgment for abuse of discretion. Pledger v. Lynch, 5 F.4th 511, 524 (4th Cir. 2021) (citing Harrods Ltd. v. Sixty Internet Domain Names, 302 F.3d 214, 244 (4th Cir. 2002)). Generally, summary judgment must be “refused where the nonmoving party has not had the opportunity to discover information that is essential to his opposition.” Harrods, 302 F.3d at 244 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 n.5 (1986)). But a nonmoving party “cannot complain that summary judgment was granted without discovery unless that party . . . attempt[ed] to oppose the motion on the grounds that more time was needed for discovery.”1 Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 961 (4th Cir. 1996) (citing Nguyen v. CNA Corp., 44 F.3d 234, 242 (4th Cir. 1995)).
A nonmovant presents such opposition in the form of a
If we determine that a district court did not abuse its discretion in considering summary judgment pre-discovery, we proceed to review the district court‘s grant of summary judgment de novo, applying the same standards as the district court. Calderon v. GEICO Gen. Ins. Co., 809 F.3d 111, 120 (4th Cir. 2015) (citing Providence Square Assocs., LLC v. G.D.F., Inc., 211 F.3d 846, 850 (4th Cir. 2000)). Under the federal rules, summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
The moving party bears the “initial responsibility” of showing that there is no
B.
The district court abused its discretion by granting summary judgment pre-discovery. Shaw properly received a Roseboro notice, explaining his rights to file competing affidavits and other evidence in response to the Prison Officials’ pre-discovery summary judgment motion. Shaw failed to respond with such evidentiary filings—or with a
Finally, and perhaps most importantly, it defies logic and common sense that summary judgment was appropriate when the video evidence—core to Shaw‘s theory of vindication for the underlying disciplinary offense—had yet to surface. This evidence was in the Prison Officials’ exclusive control. Moreover, it would likely bear profound consequences on the claims in this dispute, depending on its depictions. The record is replete with Shaw‘s requests that prison officials produce and review the video evidence. The fact of the Prison officials’ failure to disclose the video is deeply concerning, and independently bespeaks the insufficiency of the summary judgment record. On this basis alone, the district court abused its discretion.
But even if the district court did not abuse its discretion by prematurely granting summary judgment, it erred in its merits analysis. The district court found—and the Prison Officials do not dispute on appeal—that Shaw engaged in protected activity when filing various complaints and sending various letters in August 2017. The district court likewise found—and the Prison Officials do not dispute—that the Prison Officials took adverse action against Shaw. But the district court granted summary judgment in the Prison Officials’ favor because “the undisputed factual record demonstrates that there was no causal connection between [Shaw‘s] alleged First Amendment activity and [the Prison Officials‘] alleged retaliatory conduct.” Shaw v. Foreman, 1:18cv1286 (CMH/IDD), 2020 WL 4018933, at *1 (E.D. Va. July 16, 2020).
The court first explained that no causal connection could exist between Shaw‘s
“The First Amendment protects the right to petition the Government for a redress of grievances, and the Supreme Court has recognized that prisoners retain this constitutional right while they are incarcerated.” Martin I, 858 F.3d at 249 (simplified). To state a colorable First Amendment retaliation claim, “a plaintiff must allege that (1) he engaged in protected First Amendment activity, (2) the defendant[s] 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.” Id. (simplified).
To demonstrate a causal relationship between protected activity and the defendants’ conduct, this Court applies the burden-shifting framework of the same-decision test. Martin II, 977 F.3d at 299. That test allocates a prima facie burden to the plaintiff to show that his protected activity was “a substantial or motivating factor” in the defendants’ action.
Here, with respect to knowledge, Shaw‘s evidence is concededly convoluted and slightly tenuous. Nevertheless, when drawing all reasonable inferences in his favor, the record suggests that the Prison Officials knew of his protected activity. In a letter dated August 15, 2017, Shaw wrote that “staff here at Sussex I [are] opening all the mail that simply has ‘Offender Discipline Unit’ listed as the address,” thus implying that the Prison Officials were aware of Shaw‘s attempts to grieve to Richmond officials. J.A. 84. Furthermore, at least one of the Prison Officials received one of Shaw‘s informal-complaint filings asking them to review the video footage pre-hearing. See J.A. 81 (informal complaint received by Murphy on August 7). Finally, after Shaw‘s allegedly defective hearing, but before the Prison Officials transferred him to Red Onion, Shaw filed an informal complaint—seen by at least one of the Prison Officials—explaining that he had “written Richmond already,” referring to his August 9 letter. J.A. 30. Thus, a genuine dispute of fact exists as to whether one or more of the Prison Officials knew of his protected conduct pre-hearing or before his transfer.
Regarding temporal proximity, the district court was correct that a causal link
Finally, we note that the Prison Officials’ failure to provide the disputed video evidence is profoundly powerful circumstantial evidence that perhaps they did retaliate. Under Martin‘s burden-shifting framework, the simplest way that the Prison Officials can prove that they would have taken the same adverse actions in the absence of Shaw‘s protected activity would be to provide video evidence that Shaw did, indeed, subject the female correctional officer to the lewd behavior that underpinned the disciplinary-hearing verdict and the transfer decision. The Prison Officials’ failure to fortify themselves with such a simple and formidable defense to Shaw‘s allegations is highly suspect. A reasonable jury could certainly perceive the Prison Officials’ reticence in producing the video as evincing a retaliatory motive.
Consequently, viewing the evidence and reasonable inferences in a light most
IV.
Shaw plausibly alleged a violation of his procedural due process rights such that dismissal at the pleading stage was inappropriate. Pre-discovery summary judgment on his First Amendment retaliation claim was likewise inappropriate. Thus, we reverse and remand for proceedings consistent with this opinion—including, but not limited to, discovery on both claims.
When “further factual development would be appropriate” on remand, this Court has previously recommended that a district court “consider appointing counsel to assist in litigating the case, . . . consistent with local rules and procedures.” Pledger, 5 F.4th at 527 n.6 (citing Brooks v. Johnson, 924 F.3d 104, 122 n.9 (4th Cir. 2019)). Here, both of Shaw‘s claims will require further factual development on remand so that they may be properly considered at the summary judgment stage and, if necessary, proceed to trial. Thus, we recommend that the district court appoint counsel to Shaw.