PATRICK L. BOOKER, Plaintiff - Appellant,
SOUTH CAROLINA DEPARTMENT OF CORRECTIONS; SYLVIA JONES; ANN SHEPPARD; THIERRY NETTLES, Defendants-Appellees.
Argued: December 6, 2016
from the United States District Court for the District of
South Carolina, at Charleston. Mary G. Lewis, District Judge.
Meir Zionts, COVINGTON & BURLING LLP for Appellant.
Michael D. Freeman, Sr., GRIFFITH, SHARP & LIIPFERT, LLC
A. Long, Jr., COVINGTON & BURLING LLP for Appellant.
Hillary G. Meyer, GRIFFITH, SHARP & LIIPFERT, LLC for
GREGORY, Chief Judge, and TRAXLER and DIAZ, Circuit Judges.
GREGORY, Chief Judge:
Booker, an inmate of the South Carolina Department of
Corrections ("SCDC"), brought a claim under 42
U.S.C. § 1983 alleging that he received a disciplinary
charge in retaliation for filing a prison grievance. The
district court found that Booker's First Amendment right
to be free from retaliation for filing a grievance was not
clearly established, and it accordingly held that Appellees
were entitled to qualified immunity and granted summary
judgment in their favor. Because we find that Booker's
right was clearly established, we vacate the judgment and
remand to the district court for further proceedings.
mailed a legal document to the Dorchester County
Sherriff's Office on November 8, 2010, but it was
returned to him at Lieber Correctional Institution because he
had not affixed the mailing address. Booker inspected the
letter and noticed a slit along the length of the envelope.
According to Booker, the sergeant who returned the mail to
him indicated that the "confidentiality of its contents
had been compromised." J.A. 18.
learning this information, Booker initiated the prison
grievance process by submitting a form known as a Request to
Staff Member ("RSM"). The SCDC grievance process
consists of several steps. Inmates must first try to
"informally resolve a complaint" by either
discussing their complaint with the appropriate supervisor
or, as Booker did, by submitting an RSM form. J.A. 52. If
informal resolution proves unsuccessful, inmates may submit a
formal grievance to the Inmate Grievance Coordinator within
fifteen days of the incident (known as a Step 1 grievance),
with appeals to the SCDC's central Grievance Branch (a
Step 2 grievance) and eventually to the South Carolina
Administrative Law Court. The SCDC has a policy document
titled "Inmate Grievance System, " which provides
that "[n]o inmate will be subjected to reprisal,
retaliation, harassment, or disciplinary action for filing a
grievance or participating in the resolution of a
grievance." J.A. 57-58.
RSM, which he addressed to the "Mailroom, " made
its way to Appellee Sylvia Jones, the mailroom supervisor at
Lieber. J.A. 83-84. In his RSM, Booker objected to the
prison's opening of and tampering with his legal mail and
added that he intended to pursue civil and criminal remedies
if he found his mail meddled with again.
contends that in addition to filing the RSM, Booker verbally
threatened her regarding the mail incident-a fact that Booker
disputes. What is undisputed is that shortly after receiving
the RSM, Jones submitted an "Incident Report"
recommending that Booker be charged with an "809"
disciplinary offense of "Threatening to Inflict Harm
on/Assaulting an Employee and/or Members of the Public."
J.A. 71, 84. An 809 offense is a Level 2 Disciplinary
Offense, which carries penalties of disciplinary detention,
loss of accrued good behavior time, and loss of visitation,
employment, television, and other privileges. J.A. 67-68, 71.
A hearing was later held on the disciplinary charge, at which
Booker was found not guilty because he had made "legal
threats" against Jones, not physical threats. J.A. 77.
2012, Booker, proceeding pro se, filed suit in state court
against Jones, SCDC, and two other SCDC employees, Ann
Sheppard and Thierry Nettles. Booker alleged, along with
other state and federal claims, that Jones filed a false
disciplinary charge against him in retaliation for his
submission of the RSM form. J.A. 18-19, 32. Booker identified
the First Amendment as the source of this claim: "Sylvia
Jones, Ann Sheppard and Thierry Nettles are liable unto
Plaintiff in their individual/personal capacity for violating
Plaintiff's First Amendment right to free speech and
expression, and to be free from wrongful interference and
unlawful retaliation for the exercise of such right."
J.A. 32. Appellees removed the case to federal court and
later moved for summary judgment.
order granting the motion, the district court explained that
a First Amendment retaliation claim under § 1983
consists of three elements: (1) the plaintiff engaged in
constitutionally protected First Amendment activity, (2) the
defendant took an action that adversely affected that
protected activity, and (3) there was a causal relationship
between the plaintiff's protected activity and the
defendant's conduct. J.A. 115 (citing Suarez Corp.
Indus. v. McGraw, 202 F.3d 676, 686 (4th Cir. 2000)).
The court assumed, without deciding, that Booker had engaged
in constitutionally protected activity when he filed the RSM
form. J.A. 113. The district court still granted
Appellees' motion, however, finding Booker had failed to
produce sufficient evidence that he had suffered
"adverse action as a result of the 809 [disciplinary]
charge." J.A. 114.
first appeal, this Court vacated the district court's
summary judgment order as to Booker's claim that Jones
violated his First Amendment rights by submitting a
disciplinary charge in retaliation for the grievance Booker
submitted. Booker v. S. Carolina Dep't of Corr.,
583 F.App'x 43, 45 (4th Cir. 2014). Limiting our review
to the second element, as the district court did, we
concluded that Booker had "produced sufficient evidence
that Jones' conduct would likely deter prisoners of
ordinary firmness from exercising their First Amendment
rights." Id. at 44. We added that the evidence,
viewed in the light most favorable to Booker, supported a
finding that the disciplinary charge filed against Booker was
false. Id. We did not decide whether Booker had
engaged in constitutionally protected conduct when he filed
the RSM form. Id. at 44-45.
remand, Appellees again moved for summary judgment. The
district court did not reach the merits of Booker's
retaliation claim this time, instead determining that
Appellees were protected by qualified immunity. The district
court specifically found that a "prison inmate's
free speech right to submit internal grievances" was not
clearly established. J.A. 136. The court acknowledged that
the right was "perhaps sufficiently recognized in other
federal circuits." J.A. 136. But because "there has
been no published case law from the Supreme Court of the
United States, the Fourth Circuit Court of Appeals, or the
Supreme Court of South Carolina that squarely
establishes" the right at issue, it concluded the right
was not clearly established. J.A. 136-37. Accordingly, the
court held that Appellees deserved qualified immunity on the
retaliation claim and therefore granted their motion for
timely noticed this appeal.
review de novo a grant of summary judgment on the basis of
qualified immunity. Durham v. Horner, 690 F.3d 183,
188 (4th Cir. 2012). Summary judgment is proper "only if
taking the evidence and all reasonable inferences drawn
therefrom in the light most favorable to the nonmoving party,
" there are no genuine disputes of material fact and the
moving party is entitled to judgment as a matter of law.
Henry v. Purnell, 652 F.3d 524, 531 (4th Cir. 2011)
(en banc); see also Fed. R. Civ. P. 56(a).
immunity protects officials "who commit constitutional
violations but who, in light of clearly established law,
could reasonably believe that their actions were
lawful." Id. The doctrine weighs two important
values-"the need to hold public officials accountable
when they exercise power irresponsibly and the need to shield
officials from harassment, distraction, and liability when
they perform their duties reasonably." Pearson v.
Callahan, 555 U.S. 223, 231 (2009). In conducting the
qualified immunity analysis, "our first task is to
identify the specific right that the plaintiff asserts was
infringed by the challenged conduct." Winfield v.
Bass, 106 F.3d 525, 530 (4th Cir. 1997) (en banc). We
then engage in a two-step inquiry, asking "whether a
constitutional violation occurred" and "whether the
right violated was clearly established" at the time of
the official's conduct. Melgar ex rel. Melgar v.
Greene, 593 F.3d 348, 353 (4th Cir. 2010). Courts have
discretion to take these steps in either order.
Pearson, 555 U.S. at 236.
"clearly established" prong lies at the heart of
this case-we do not evaluate the merits of Booker's
claim. A "right is clearly established only if its
contours are sufficiently clear that 'a reasonable
official would understand that what he is doing violates that
right.'" Carroll v. Carman, 135 S.Ct. 348,
350 (2014) (quoting Anderson v. Creighton, 483 U.S.
635, 640 (1987)). The unlawfulness of the official's
conduct must be "apparent" in "light of
pre-existing law." Anderson, 483 U.S. at 640.
To be clearly established, "existing precedent must have
placed the statutory or constitutional question beyond
debate." Ashcroft v. al-Kidd, 563 U.S. 731, 741
consider not only "specifically adjudicated rights,
" but also "those manifestly included within more
general applications of the core constitutional principles
invoked." Wall v. Wade, 741 F.3d 492, 502-03
(4th Cir. 2014) (quoting Pritchett v. Alford, 973
F.2d 307, 314 (4th Cir. 1992)). In other words, defendants
"can still be on notice that their conduct violates
established law even in novel factual circumstances, "
so long as the law provided "fair warning" that
their conduct was unconstitutional. Hope v. Pelzer,
536 U.S. 730, 741 (2002).
conducting the clearly established analysis, we first examine
"cases of controlling authority in [this] jurisdiction,
" Amaechi v. West, 237 F.3d 356, 363 (4th Cir.
2001) (quoting Wilson v. Layne, 526 U.S. 603, 617
(1999))-that is, "decisions of the Supreme Court, this
court of appeals, and the highest court of the state in which
the case arose, " Owens ex rel. Owens v. Lott,
372 F.3d 267, 279 (4th Cir. 2004) (quoting Edwards v.
City of Goldsboro, 178 F.3d 231, 251 (4th Cir.
1999)). We "ordinarily"
need not look any further than decisions from these courts.
Id. But when "there are no such decisions from
courts of controlling authority, we may look to 'a
consensus of cases of persuasive authority' from
other jurisdictions, if such exists."
Id. at 280 (emphasis added) (quoting
Wilson, 526 U.S. at 617).
Supreme Court, in an opinion authored by Chief Justice
Rehnquist, articulated that courts may rely on "a
consensus of cases of persuasive authority" to determine
whether a "reasonable officer could not have believed
that his actions were lawful." Wilson, 526 U.S.
at 617. Since Wilson, the Supreme Court has
reaffirmed that "qualified immunity is lost when
plaintiffs point either to 'cases of controlling
authority in their jurisdiction at the time of the
incident' or to 'a consensus of cases of persuasive
authority.'" Ashcroft, 563 U.S. at 742
(quoting Wilson, 526 U.S. at 617). And in evaluating whether a right is
clearly established in a given circuit, the Supreme Court has
looked to precedent from other circuits. See, e.g.,
Pearson, 555 U.S. at 244 (considering decisions from
"three Federal Courts of Appeals" and noting
officers "were entitled to rely on these cases, even
though their own Federal Circuit had not yet ruled on"
constitutional issue); Brosseau v. Haugen, 543 U.S.
194, 200-01 (2004) (discussing Sixth, Seventh, and Eighth
Circuit cases in finding right not clearly established in
we apply these rules to the instant case, we must first
define the right at the "appropriate level of
specificity, " Wilson, 526 U.S. at 615, keeping
in mind that the Supreme Court has cautioned against defining
the right at too "high [a] level of generality, "
Ashcroft, 563 U.S. at 742. See also id.
(noting, for example, the "general proposition"
that whether "an unreasonable search or seizure violates
the Fourth Amendment is of little help in determining whether
the violative nature of particular conduct is clearly
outset, we preempt a possible point of confusion-Booker did
not allege in his complaint that he has an absolute
right to file prison grievances pursuant to the First
Amendment. Rather, Booker alleged that he has a First
Amendment right to be free from retaliation when he does file
a grievance pursuant to an existing grievance
procedure.See J.A. 32.
particularly, Booker asserts that this right is rooted in the
First Amendment's Petition Clause, which guarantees
individuals the right "to petition the Government for a
redress of grievances." U.S. Const. amend. I. Booker
contends that an inmate's right to petition is violated
when he is retaliated against for filing a grievance.
Appellees suggest in passing that we should not examine
whether the right was established under the Petition Clause,
apparently referencing the district court's refusal to
consider the right to petition. With minimal explanation, the
district court limited its analysis to the Free Speech
Clause, stating that an "inmate's free speech right
to submit internal grievances" was the right
"pressed by the Plaintiff throughout this
litigation." J.A. 136.
district court should not have limited itself so. To the
extent the court considered only the free speech right
because Booker mentioned that clause in his pro se complaint,
we note that Booker also generally alleged a violation of the
First Amendment, J.A. 31, and that courts are obligated to
"liberally construe" pro se complaints,
"however inartfully pleaded, " Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v.
Gamble, 429 U.S. 97, 106 (1976)). Booker also directly argued to the
district court that "[i]nstead of analyzing the first
element to a First Amendment retaliation claim in the context
of  public employee speech, the [magistrate judge] should
have realized that the facts in this case related more to a
deprivation of Plaintiff's right to petition the
government." Pl.'s Objections to Report and
Recommendation, Dist. Ct. ECF No. 160, at 5 (May 6, ...