United States District Court, W.D. Virginia, Roanoke Division
Jackson L. Kiser Senior United States District Judge
Lorenza Gerald Ferebee, Jr., a Virginia inmate proceeding pro
se, filed this civil rights action pursuant to 42 U.S.C.
§ 1983, alleging violations of his federal and state
rights related to a prison grievance procedure. After review
of the record, the court concludes that the action must be
time his claims arose, Ferebee was confined at Red Onion
State Prison ("Red Onion"). In early 2019, he grew
frustrated because "sewage water keep coming up threw
[sic] the institutional pod man-hole(s) and preventing [him]
from having adequate access to wash his hand(s) after using
the cell toilet in order to eat any meal, because the
Correctional Officer[s] have to turn off the pod water supply
system." (Compl. 7 [ECF No. 1].) On February 15, 2019,
Ferebee filed an Informal Complaint form about this problem,
ROSP-19-INF-00364. The sewage problem continued, however, and
he did not receive a response to his Informal Complaint. On
February 19, 2019, Ferebee filed a second Informal Complaint
form about the water issues in his cell, ROSP-19-INF-00365.
February 25, 2019, Officer D. Gibson and the prison's
plumber, D. Stallard, came to Ferebee's cell door to
discuss his Informal Complaints. They asked Ferebee if he
wanted to withdraw them, but Ferebee refused to do so. Gibson
allegedly told Ferebee "he'll regret that."
(Id. at 9. (The officers left without returning
Ferebee's Informal Complaint Forms to him.
next day, Ferebee's Informal Complaints were returned to
him through the institutional mail. He alleges that on each
of the forms his "SIGNATURE HAS BEEN FORJURED
[sic]" to make it appear that he had withdrawn
the Informal Complaint, as the officers had urged him to do.
(Id. at 8, 9.) Ferebee filed an Informal Complaint
about the officers' alteration of his prior forms. In
response, he was told that during an investigation of the
matter, Stallard and Gibson both said Ferebee had
"willfully" signed the forms to indicate that he
was withdrawing them. (Id. at 11.) Ferebee explains
that when an inmate withdraws an Informal Complaint, any
later-filed form on the same issue will be rejected as
repetitive. Without a processed Informal Complaint, the
inmate cannot properly file a Regular Grievance, the next
required step in the prison's grievance procedures.
§ 1983 complaint, Ferebee asserts that the
defendants' actions deprived him of his rights to
"FREE EXERCISE THE REDRESS OF GRIEVANCE(S) and DUE
PROCESS BY EQUAL PROTECTION OF FEDERAL AND STATE CREATED
LIBERTY INTEREST." (Id. at 18.) Ferebee
contends that Gibson and Stallard falsified his signature to
show his withdrawal of the two Informal Complaint Forms as
part of their conspiracy to retaliate against him for
complaining about the water problems and to prevent him from
filing a lawsuit on that issue. See 42 U.S.C. § 1997e(a)
("No action shall be brought with respect to prison
conditions under [42 U.S.C. § 1983] by a prisoner
confined in any jail, prison, or other correctional facility
until such administrative remedies as are available are
exhausted."). Finally, Ferebee complains that the
defendants violated state laws, namely, an anti-retaliation
provision and other requirements of the prison's
grievance procedures. As relief, he seeks declaratory and
injunctive relief and compensatory and punitive damages.
court may summarily dismiss a case "brought with respect
to prison conditions ... by a prisoner confined in any jail,
prison, or other correctional facility if the court is
satisfied that the action is frivolous, malicious, fails to
state a claim upon which relief can be granted." 42
U.S.C. § 1997e(c)(1). A "frivolous" claim is
one that "lacks an arguable basis either in law or in
fact." Neitzke v. Williams. 490 U.S. 319, 325,
327 (1989) (interpreting "frivolous" in former
version of 28 U.S.C. § 1915(d)). Section 1983 permits an
aggrieved party to file a civil action against a person for
actions taken under color of state law that violated his
constitutional rights. Cooper v. Sheehan, 735 F.3d
153, 158 (4th Cir. 2013).
has no "constitutional entitlement to and/or due process
interest in accessing a grievance procedure constitutional
right to participate in a prison grievance procedure."
Booker v. S.C. Dep't of Corr.. 855 F.3d 533, 542
(4th Cir. 2017), cert denied, 138 S.Ct. 755 (2018).
Thus, his § 1983 claim that the defendants' actions
prevented him from filing further grievances and appeals
concerning the water issues in his cell must be summarily
has a First Amendment right to be free from retaliation,
however, for filing the Informal Complaints as an exercise of
his right to petition for redress. Id.
"Retaliation, though it is not expressly referred to in
the Constitution, is nonetheless actionable [under §
1983] because retaliatory actions may tend to chill
individuals' exercise of constitutional rights."
Am. Civil Liberties Union v. Wicomico Ctv.. 999 F.2d
780, 785 (4th Cir. 1993). On the other hand, I must treat an
inmate's claim of retaliation by prison officials
"with skepticism," because prison officials'
actions are often taken in direct response to a
prisoner's conduct. Cochran v. Morris, 73 F.3d
1310, 1317 (4th Cir. 1996). "[T]o 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." Martin v. Duffy, 858
F.3d 239, 249 (4th Cir. 2017), cert denied, 138 S.Ct. 738,
allegations satisfy only the first and third factors in this
standard. As stated, he was exercising his constitutionally
protected right to petition when he filed his Informal
Complaint about the water problems, in satisfaction of the
first factor. He has also alleged that the defendants
falsified withdrawal of that form because it complained about
water problems, in satisfaction of the third factor.
Ferebee's retaliation claim fails, however, because he
cannot show that this sequence of events had a sufficiently
adverse effect on his ability to exercise a First Amendment
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. I will assume that
the defendants' alleged forgeries prevented Ferebee from
filing additional Informal Complaints or Regular Grievances
about the water problems. Because he has no constitutional
right to participate in a prison grievance procedure, see
Booker, supra, his alleged preclusion from
filing future grievance forms or appeals was not a
deprivation of constitutional proportions. Moreover, the
unavailability of the prison's grievance procedures on
the water issue did not preclude Ferebee from exercising his
right to petition or his right to access the courts, because
he retained the ability to file a federal lawsuit on the
matter. See Ross v. Blake, 136 S.Ct. 1850, 1859
(2016) (finding that inmate who fails to exhaust
administrative remedies before filing federal civil action
may escape dismissal under 42 U.S.C. § 1997e(a) if he
proves that those remedies were not available to him). For
the stated reasons, I conclude that Ferebee's allegations
do not state an actionable § 1983 retaliation claim.
Ferebee's allegations also fail to support a § 1983
conspiracy claim. Such a claim requires showing that
purported conspirators agreed to take some action that
violated the plaintiffs constitutional rights. Hinkle v.
City of Clarksburg. 81 F.3d 416, 421 (4th Cir. 1996).
Here, for the reasons I have already described, the
defendants' actions did not deprive ...