PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-7679
PATRICK L. BOOKER,
Plaintiff - Appellant,
v.
SOUTH CAROLINA DEPARTMENT OF CORRECTIONS; SYLVIA JONES;
ANN SHEPPARD; THIERRY NETTLES,
Defendants - Appellees.
Appeal from the United States District Court for the District of South Carolina, at
Charleston. Mary G. Lewis, District Judge. (2:12-cv-01957-MGL)
Argued: December 6, 2016 Decided: April 28, 2017
Before GREGORY, Chief Judge, and TRAXLER and DIAZ, Circuit Judges.
Vacated and remanded by published opinion. Chief Judge Gregory wrote the majority
opinion, in which Judge Diaz joined. Judge Traxler wrote a dissenting opinion.
ARGUED: David Meir Zionts, COVINGTON & BURLING LLP, Washington, D.C.,
for Appellant. Michael D. Freeman, Sr., GRIFFITH, SHARP & LIIPFERT, LLC,
Beaufort, South Carolina, for Appellees. ON BRIEF: Robert A. Long, Jr.,
COVINGTON & BURLING LLP, Washington, D.C., for Appellant. Hillary G. Meyer,
GRIFFITH, SHARP & LIIPFERT, LLC, Beaufort, South Carolina, for Appellees.
GREGORY, Chief Judge:
Patrick 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.
I.
Booker 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.
After 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
2
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.
Booker’s 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.
Jones 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.
3
In June 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.
In its 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.
4
In the 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.
On 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 summary judgment.
Booker timely noticed this appeal.
5
II.
We 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).
Qualified 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.
The “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
6
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 (2011).
We must 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).
In 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)). 1 We “ordinarily” need not look
1
District court opinions, on the other hand, are not decisions of “controlling
authority.” As the Supreme Court recently explained in an opinion concerning qualified
immunity, “[a] decision of a federal district court judge is not binding precedent in either
(Continued)
7
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).
The 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). 2 And in
evaluating whether a right is clearly established in a given circuit, the Supreme Court has
a different judicial district, the same judicial district, or even upon the same judge in a
different case.” Camreta v. Greene, 563 U.S. 692, 709 n.7 (2011) (quoting 18 J. Moore
et al., Moore’s Federal Practice § 134.02[1][d] (3d ed. 2011)). It is for this reason that
“[m]any Courts of Appeals [] decline to consider district court precedent when
determining if constitutional rights are clearly established for purposes of qualified
immunity.” Id. (citing Kalka v. Hawk, 215 F.3d 90, 100 (D.C. Cir. 2000) (Tatel, J.,
concurring in part and concurring in judgment) (collecting cases)).
2
Following the Supreme Court’s lead, several of our sister circuits, like us, have
recognized that courts may consider decisions from other circuits in the absence of
binding precedent. Werner v. Wall, 836 F.3d 751, 762 n.28 (7th Cir. 2016) (“We are not
alone in looking to trends in the decisional law of other jurisdictions once we are satisfied
that controlling precedent in our own circuit does not clearly establish a particular legal
right.”) (citing Cox v. Glanz, 800 F.3d 1231, 1247 (10th Cir. 2015); Morgan v. Swanson,
659 F.3d 359, 372 (5th Cir. 2011); Bame v. Dillard, 637 F.3d 380, 384 (D.C. Cir. 2011);
Wilson v. City of Boston, 421 F.3d 45, 56 (1st Cir. 2005); Turner v. Ark. Ins. Dep’t, 297
F.3d 751, 755 (8th Cir. 2002); Trulock v. Freeh, 275 F.3d 391, 407 (4th Cir. 2001)).
8
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 Ninth
Circuit).
III.
A.
Before 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 established”).
At the 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
9
retaliation when he does file a grievance pursuant to an existing grievance procedure. 3
See J.A. 32.
More 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.
The 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
3
Appellees quibble with the right at issue. They contend that the alleged
retaliation was in response to Booker’s submission of an RSM form—not a grievance.
This is simply a matter of semantics. Inmates in the SCDC submit RSM forms to express
grievances and initiate the grievance process, and this Court previously classified
Booker’s submission of the RSM form as “Booker’s grievance,” Booker, 583 F. App’x
at 44. The Ninth Circuit rejected a near-identical distinction in Brodheim v. Cry, where
the defendants suggested that an inmate could not bring a First Amendment retaliation
claim because the alleged retaliation was in response to the inmate’s filing of a document
called an “interview request form.” 584 F.3d 1262, 1271 n.4 (9th Cir. 2009). The court
noted that the interview request form was “part of the grievance process” and held that
the “applicability of the constitutional right to redress of grievances does not hinge on the
label the prison places on a particular complaint.” Id.
10
complaints, “however inartfully pleaded,” Erickson v. Pardus, 551 U.S. 89, 94 (2007)
(quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). 4 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, 2015). Booker’s detailed factual allegations and his
reference to the First Amendment provide a more-than-sufficient basis for us to analyze
whether the right was clearly established under the Petition Clause.
B.
The clearly established inquiry asks whether the state of the law gave a reasonable
prison official “fair warning” that retaliating against an inmate who files a prison
grievance was unconstitutional.
It is “well established” in this Circuit that a “public official may not misuse his
power to retaliate against an individual for the exercise of a valid constitutional right.”
Trulock, 275 F.3d at 405. Thus, if an inmate exercises his First Amendment right when
he files a prison grievance, retaliation against him for doing so is unconstitutional. The
pertinent question in this appeal, then, is whether it was clearly established that an inmate
4
Indeed, courts have liberally construed complaints even where pro se plaintiffs
do not reference any source of law, see Hodge v. Gansler, 547 F. App’x 209, 210 n.1 (4th
Cir. 2013) (construing claim for “racial profiling” as equal protection claim) (citing
Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978)), or where they cite the wrong part
of the Constitution, see Ambrose v. Roeckeman, 749 F.3d 615, 618 (7th Cir. 2014).
11
exercises a First Amendment right to petition for redress of grievances when he files a
prison grievance. Framed differently, we must determine whether it was clearly
established that an inmate’s right to petition is violated when he is retaliated against for
filing a grievance.
As noted, the first step is to consider cases of controlling authority in this
jurisdiction. See Owens, 372 F.3d at 279–80. We thus start with Supreme Court, Fourth
Circuit, and Supreme Court of South Carolina decisions that have addressed the asserted
right. The parties do not contest the district court’s finding that no decision from the
United States Supreme Court or Supreme Court of South Carolina explicitly discusses the
right. The parties do dispute, however, whether our Court has addressed it. Booker
contends that the Fourth Circuit has not discussed in a published opinion whether inmates
have a First Amendment right to be free from retaliation for filing grievances. For their
part, Appellees appear to agree that this Court has never explicitly considered this right.
Nevertheless, they contend that our decision in Adams v. Rice, 40 F.3d 72 (4th Cir. 1994),
resolves the clearly established analysis in their favor. 5 They understand Adams to
suggest that inmates do not exercise any constitutional right (under the First Amendment
or otherwise) when they file a prison grievance. See Appellees’ Br. 13–14; see also id. at
5
It is worth noting the change in Appellees’ position. Earlier in the litigation,
prior to the first appeal, they agreed with Booker that “it has been clearly established that
a prison official may not retaliate against an inmate for . . . complaining about a prison
official’s conduct.” Defs.’ Reply to Pl.’s Response in Opp. to Mot. for S.J., Dist. Ct. ECF
No. 48, at 8 (Jan. 17, 2013) (emphasis added).
12
17 (arguing that inmates exercise First Amendment right to petition by accessing the
courts, not by filing grievances).
Adams does not stand for—or even imply—that proposition, however. There, an
inmate claimed that when he requested protective custody, the prison officials retaliated
against him by, among other things, denying him access to the prison’s grievance
process. Adams, 40 F.3d at 75. On appeal, the plaintiff “recast[] his protective custody
request as an exercise of a ‘right to inform’ prison officials of dangerous conditions”
incident to the Eighth Amendment. Id. In other words, Adams asserted he had a
constitutional right “to a particular grievance procedure.” Id. This Court held that the
plaintiff had not exercised any such right by requesting protective custody. Id. We went
on to state that “the Constitution creates no entitlement to grievance procedures or access
to any such procedure.” Id. (citing Flick v. Alba, 932 F.2d 728, 729 (8th Cir. 1991) (per
curiam); Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988) (per curiam)).
Adams establishes a clear rule: inmates have no constitutional entitlement or due
process interest in access to a grievance procedure. An inmate thus cannot bring a § 1983
claim alleging denial of a specific grievance process, for example. But Adams is entirely
silent on the issue in this case—whether an inmate’s First Amendment right is violated
when he is retaliated against for submitting a grievance pursuant to an existing grievance
procedure. That a prison is not required under the Constitution to provide access to a
grievance process does not mean that prison officials who retaliate against inmates for
filing grievances do not violate the Constitution.
13
As the Eighth Circuit explained nearly three decades ago, there is a very critical
distinction between the right of access or entitlement to a grievance process and the right
to be free from retaliation for filing a grievance:
Prison officials cannot properly bring a disciplinary action against a
prisoner for filing a grievance that is determined by those officials to be
without merit anymore than they can properly bring a disciplinary action
against a prisoner for filing a lawsuit that is judicially determined to be
without merit. That the Constitution does not obligate the state to establish
a grievance procedure is, we believe, of no consequence here . . . .
Sprouse v. Babcock, 870 F.2d 450, 452 (8th Cir. 1989) (emphasis added). Indeed, the
Eighth Circuit recognizes that (1) an inmate possesses a First Amendment right to be free
from retaliation for filing a grievance, id., while simultaneously recognizing that (2) an
inmate does not have a due process “liberty interest in access to [a grievance] procedure,”
Flick, 932 F.2d at 729.
The Eighth Circuit is not alone in finding that although inmates do not have a
constitutional entitlement to and/or due process interest in accessing a grievance
procedure, they have a First Amendment right to be free from retaliation when they do
file. Compare Geiger v. Jones, 404 F.3d 371, 374 (5th Cir. 2005) (finding no liberty
interest in grievance procedure), with Bibbs v. Early, 541 F.3d 267, 272 (5th Cir. 2008)
(recognizing First Amendment retaliation right); compare Mann v. Adams, 855 F.2d 639,
640 (9th Cir. 1988) (finding inmates have “no legitimate claim of entitlement to a
grievance procedure”), with Hines v. Gomez, 108 F.3d 265, 269 (9th Cir. 1997)
(recognizing First Amendment retaliation right); compare Bingham v. Thomas, 654 F.3d
1171, 1177 (11th Cir. 2011) (holding that inmates have “no constitutionally-protected
14
liberty interest in access to [grievance] procedure”), with Boxer X v. Harris, 437 F.3d
1107, 1112 (11th Cir. 2006) (recognizing First Amendment retaliation right). Like our
sister circuits, we see no inconsistency between these distinct legal principles.
In short, Adams concerns whether inmates have a constitutional entitlement to or
liberty interest in accessing grievance procedures. It says nothing about whether a prison
official violates an inmate’s First Amendment rights by retaliating against the inmate for
submitting a grievance. Therefore, contrary to Appellees’ suggestion, Adams does not
speak to the right at issue. As such, neither party has cited cases from courts of
controlling authority—the Supreme Court, this Court, or the Supreme Court of South
Carolina—that explicitly address an inmate’s First Amendment right to be free from
retaliation for filing a prison grievance.
To be sure, as discussed at oral argument, there are unpublished opinions in this
Circuit that reference Adams and/or directly address the right in question. One such
decision misconstrued Adams to preclude an inmate from bringing a First Amendment
claim alleging retaliation in response to his verbal complaints to prison officials. See
Daye v. Rubenstein, 417 F. App’x 317, 319 (4th Cir. 2011). Others properly applied
Adams. See, e.g., Cameron v. Bonney, 523 F. App’x 969, 970 (4th Cir. 2013) (applying
Adams to reject inmate’s claim that his constitutional rights were violated when he was
denied access to a grievance form). And still more unpublished decisions found that
15
inmates can bring a First Amendment claim alleging retaliation for filing a grievance. 6
See, e.g., Wright v. Vitale, 937 F.2d 604, 1991 WL 127597, at *1 (4th Cir. 1991)
(unpublished table opinion); Gullet v. Wilt, 869 F.2d 593, 1989 WL 14614, at *2 (4th Cir.
1989) (unpublished table opinion). But because these unpublished opinions “are not even
regarded as binding precedent in our circuit,” as this Court sitting en banc has explained,
they “cannot be considered in deciding whether particular conduct violated clearly
established law for purposes of adjudging entitlement to qualified immunity.” Hogan v.
Carter, 85 F.3d 1113, 1118 (4th Cir. 1996) (en banc).
We therefore agree with the district court’s conclusion that no published decision
from the Supreme Court, this Court, or the Supreme Court of South Carolina squarely
addresses whether filing a grievance is protected First Amendment conduct.
The district court, after determining there were no binding cases that squarely
established the specific First Amendment right, concluded that the right was not clearly
established. J.A. 137. But the clearly established inquiry was not complete: as this
Court has stated, and as Booker recognizes, the “absence of controlling authority holding
identical conduct unlawful does not guarantee qualified immunity.” Owens, 372 F.3d at
279. The district court failed to consider whether, despite the lack of directly on-point,
6
We have also found, in an unreported decision, that an inmate could bring a
claim alleging he was transferred in retaliation for sending a letter to the mother of a
fellow inmate who was severely beaten. Moore v. Bennette, 97 F. App’x 405, 406 (4th
Cir. 2004). The retaliation claim was later acknowledged in a published decision, see
Moore v. Bennette, 517 F.3d 717, 724 (4th Cir. 2008), and eventually evaluated by the
district court as a First Amendment retaliation claim, see Moore v. Bennette, 777 F. Supp.
2d 969, 982–85 (E.D.N.C. 2011).
16
binding authority, the right was clearly established based on general constitutional
principles or a consensus of persuasive authority. We now proceed to that task.
C.
In the absence of controlling authority that specifically adjudicates the right in
question, a right may still be clearly established in one of two ways. A right may be
clearly established if “a general constitutional rule already identified in the decisional law
[] appl[ies] with obvious clarity to the specific conduct in question.” Hope, 536 U.S. at
741 (quoting United States v. Lanier, 520 U.S. 259, 271 (1997)); see also Owens, 372
F.3d at 279 (stating that a right may be clearly established if it is “manifestly apparent
from broader applications of the constitutional premise in question”). A right may also
be clearly established based on a “‘consensus of cases of persuasive authority’ from other
jurisdictions.” Owens, 372 F.3d at 280 (quoting Wilson, 526 U.S. at 617). Here, Booker
argues that his First Amendment right was clearly established in both ways.
Arguably, the prohibition on retaliating against inmates for filing grievances was
obviously unconstitutional given longstanding principles articulated in controlling
authority. It is beyond dispute that prison officials cannot retaliate against inmates for
exercising a constitutional right. Trulock, 275 F.3d at 405. And Booker presents a
logical and compelling argument that, in light of binding Supreme Court precedent, he
exercised his constitutional right to petition the government for redress of grievances
17
when he filed an administrative grievance seeking redress for what he believed was the
improper handling of his legal mail. 7
In addition to Supreme Court precedent, this Court has long held that prison
officials may not retaliate against prisoners for exercising their right to access the courts,
Hudspeth v. Figgins, 584 F.2d 1345, 1348 (4th Cir. 1978), which is a component of the
right to petition for redress of grievances, Hudson v. Palmer, 468 U.S. 517, 523 (1984).
Given the close relationship between an inmate filing a grievance and filing a lawsuit—
indeed, the former is generally a prerequisite for the latter—our jurisprudence provided a
strong signal that officials may not retaliate against inmates for filing grievances.
Regardless of whether Booker’s right was obvious or “manifestly apparent” from
broader principles in the decisional law, we find that it was clearly established based on a
robust “consensus of persuasive authority.” The Second, Sixth, Seventh, Eighth, Ninth,
Eleventh, and D.C. Circuits have all recognized in published decisions that inmates
possess a right, grounded in the First Amendment’s Petition Clause, to be free from
retaliation in response to filing a prison grievance. The Second Circuit, for instance,
7
The Supreme Court has long held that prisoners “retain the constitutional right to
petition the government for the redress of grievances.” Turner v. Safley, 482 U.S. 78, 84
(1987). This right “advance[s] personal expression,” Borough of Duryea v. Guarnieri,
564 U.S. 379, 388 (2011), and “extends to all departments of the Government,” including
administrative agencies, California Motor Transp. Co. v. Trucking Unlimited, 404 U.S.
508, 510 (1972). Read together, Booker suggests it is clear that an inmate exercises the
petition right when he files a grievance. The Supreme Court has further stated that
prisoners retain “protection from arbitrary state action even within the expected
conditions of confinement. They may invoke the First and Eighth Amendments and the
Equal Protection Clause of the Fourteenth Amendment where appropriate, and may draw
upon internal prison grievance procedures and state judicial review where available.”
Sandin v. Conner, 515 U.S. 472, 487 n.11 (1995) (emphasis added).
18
recognized that an inmate can bring a First Amendment right to petition claim when
prison officials “intentionally file[] false disciplinary charges against him in retaliation
for his cooperation with a state administrative investigation of alleged incidents of inmate
abuse at the prison.” Franco v. Kelly, 854 F.2d 584, 589 (2d Cir. 1988). The court later
recognized the right in the context of retaliation against inmates for filing grievances.
Gayle v. Gonyea, 313 F.3d 677, 682 (2d Cir. 2002) (“An allegation that a prison official
filed false disciplinary charges in retaliation for the exercise of a constitutionally
protected right, such as the filing of a grievance, states a claim under § 1983.”) (citing
Franco, 854 F.3d at 589–90). The Sixth, Seventh, Eighth, Ninth, Eleventh, and D.C.
Circuits have likewise recognized that inmates possess a First Amendment petition right
to be free from retaliation for filing grievances. Herron v. Harrison, 203 F.3d 410, 414
(6th Cir. 2000) (recognizing claim where inmate alleged that prison officials
“impermissibly retaliated against him for exercising his First Amendment right to file
grievances and petition the courts for redress”); Powers v. Snyder, 484 F.3d 929, 933 (7th
Cir. 2007) (recognizing claim where inmate alleged he was retaliated against for “filing
grievances against the prison” and noting “[s]uch retaliation violates a prisoner’s right,
founded on the First Amendment, to petition government for the redress of grievances”);
Dixon v. Brown, 38 F.3d 379, 379 (8th Cir. 1994) (holding that “filing of a disciplinary
charge becomes actionable if done in retaliation for the inmate’s filing of a grievance”
and stating that such conduct “strikes at the heart of an inmate’s constitutional right to
seek redress of grievances”); Brodheim v. Cry, 584 F.3d 1262, 1266, 1269–72 (9th Cir.
2009) (recognizing First Amendment petition right where inmate alleged retaliation for
19
filing grievances); Boxer X v. Harris, 437 F.3d 1107, 1112 (11th Cir. 2006) (“First
Amendment rights to free speech and to petition the government for a redress of
grievances are violated when a prisoner is punished for filing a grievance . . . .”);
Toolasprashad v. Bureau of Prisons, 286 F.3d 576, 584–85 (D.C. Cir. 2002) (recognizing
that prisoners “undoubtedly” exercise First Amendment petition right when filing
grievances and stating that prison “officials may not retaliate against prisoners for filing
grievances”).
Even more, the Third, Fifth, and Tenth Circuits have recognized an inmate’s right
to be free from retaliation for filing a grievance under the First Amendment (albeit
without referencing a particular clause). Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir.
2003) (“[Inmate’s] allegation that he was falsely charged with misconduct in retaliation
for filing complaints against Officer Wilson implicates conduct protected by the First
Amendment.”); Bibbs v. Early, 541 F.3d 267, 271 (5th Cir. 2008) (recognizing First
Amendment retaliation claim where official filed a disciplinary report “following an
inmate’s filing of a grievance”); Williams v. Meese, 926 F.2d 994, 998 (10th Cir. 1991)
(“[T]he district court erred in dismissing plaintiff’s claim that that he was denied
particular job assignments or was transferred from one job to another in retaliation for
filing administrative grievances or the present civil rights action. Again, although
plaintiff has no right to a job or to any particular assignment, prison officials cannot
punish plaintiff for exercising his first amendment rights . . . .”).
Given the decisions from nearly every court of appeals, we are compelled to
conclude that Booker’s right to file a prison grievance free from retaliation was clearly
20
established under the First Amendment. Consistent with fundamental constitutional
principles and common sense, these courts have had little difficulty concluding that
prison officials violate the First Amendment by retaliating against inmates for filing
grievances. Rarely will there be such an overwhelming consensus of authority
recognizing that specific conduct is violative of a constitutional right. The unanimity
among our sister circuits demonstrates that the constitutional question is “beyond
debate,” and therefore we find that the right at issue was clearly established.
Appellees do not dispute this consensus among the federal appellate courts. They
instead argue that there is a “body of case law within the Fourth Circuit that specifically
holds prisoners have no constitutional right to file a grievance.” Appellees’ Br. 13. This
“body of case law” consists of three published district court opinions from the Western
District of Virginia, two of which were issued by the same district judge and do not even
mention the First Amendment. See id. at 14. All three decisions erroneously rely on
Adams in rejecting an inmate’s claim that he was retaliated against for filing grievances.
See, e.g., Brown v. Angelone, 938 F. Supp. 340, 346–47 (W.D. Va. 1996).
These district court decisions do not alter our conclusion that the right was clearly
established. First, it is unclear whether we should include district court opinions in the
balancing of “persuasive authority.” As the Supreme Court has remarked, “[m]any
Courts of Appeals [] decline to consider district court precedent when determining if
constitutional rights are clearly established for purposes of qualified immunity.”
Camreta, 563 U.S. at 709 n.7. The Court went on, “[o]therwise said, district court
decisions—unlike those from the courts of appeals—do not necessarily settle
21
constitutional standards or prevent repeated claims of qualified immunity.” Id. Given
that published district court opinions, like unpublished opinions from our Court, have no
precedential value, it follows that we should not consider them. But even if we classify
published district court opinions as relevant “persuasive authority,” they are “no match
for the Circuit precedents.” Hope, 536 U.S. at 747. When weighed against the circuit
precedents, there is still an overwhelming “consensus of persuasive authority” that
inmates possess a First Amendment right to be free from retaliation for filing a grievance.
Our “conclusion that ‘a reasonable person would have known,’ Harlow [v.
Fitzgerald, 457 U.S. 800, 818 (1982)], of the violation is buttressed by” the South
Carolina Department of Correction’s internal policies. Hope, 536 U.S. at 744. Although
officials “do not lose their qualified immunity merely because their conduct violates
some statutory or administrative provision,” Davis v. Scherer, 468 U.S. 183, 194 (1984),
the Supreme Court has analyzed prison regulations in combination with case law to
determine whether an individual had fair warning, see Hope, 536 U.S. at 741–45 (relying
on binding precedent, Alabama Department of Corrections regulation, and Department of
Justice report in finding conduct violated clearly established right); see also Furnace v.
Sullivan, 705 F.3d 1021, 1027 (9th Cir. 2013) (stating that “regulations governing the
conduct of correctional officers are also relevant in determining whether an inmate’s right
was clearly established”) (quoting Treats v. Morgan, 308 F.3d 868, 875 (8th Cir. 2002)
(citing Hope, 536 U.S. at 743–744)); Okin v. Vill. of Cornwall-On-Hudson Police Dep’t,
577 F.3d 415, 433–34 (2d Cir. 2009).
22
Here, the SCDC’s detailed policy document concerning the “Inmate Grievance
System” 8 expressly 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. The record further indicates that this prohibition was
communicated to prison officials: “As part of the Department orientation program, all
newly hired employees will receive written and/or oral explanations of the Department’s
grievance policy/procedure by a representative of the Inmate Grievance Branch.” J.A.
57. Again, the fundamental inquiry for purposes of qualified immunity is whether a
reasonable official in Jones’s position had “fair warning” that the alleged conduct was
unconstitutional. Hope, 536 U.S. at 741. The unequivocal language of SCDC’s own
policies provides additional support for our finding that Jones had such warning here.
In sum, given the authority discussed above, we conclude that a reasonable prison
official had fair warning that retaliating against an inmate who filed a prison grievance
was unlawful. Because an inmate’s First Amendment right to be free from retaliation for
filing a grievance was clearly established, we find that Appellees are not entitled to
8
We treat the “Inmate Grievance System” document as a prison regulation. As
the South Carolina Court of Appeals recently explained with respect to this exact
document, “[a]lthough SCDC’s statements concerning the inmate grievance system are
within a document entitled ‘SCDC Policy/Procedure,’ they are ‘binding norms’ and, thus,
more like rules or regulations . . . than they are true policy statements.” Ackerman v. S.
Carolina Dep’t of Corr., 782 S.E.2d 757, 761 n.6 (S.C. Ct. App. 2016). And this Court
has previously classified SCDC policy statements as regulations. See Hines v. S.
Carolina Dep’t of Corr., 148 F.3d 353, 358 (4th Cir. 1998) (classifying SCDC
“Grooming Policy” as “neutral and generally applicable regulation”).
23
qualified immunity on that basis and therefore the district court erred in granting their
motion for summary judgment.
IV.
For the foregoing reasons, the judgment of the district court is vacated, and we
remand for further proceedings consistent with this opinion.
VACATED AND REMANDED
24
TRAXLER, Circuit Judge, dissenting:
Relying on decisions from other circuits, the majority concludes that a prisoner’s
right to be free from retaliation for filing a grievance was clearly established in 2010,
when the actions giving rise to this lawsuit took place. Even assuming that that right may
have been clearly established in other circuits, the case law from this circuit in 2010
could reasonably be understood as foreclosing that claim. See Adams v. Rice, 40 F.3d 72
(4th Cir. 1994). Because the controlling law in this circuit did not put the prison officials
on notice that their conduct violated Booker’s constitutional rights, I believe the prison
officials are entitled to qualified immunity. Accordingly, I respectfully dissent.
I.
Qualified immunity works to “avoid excessive disruption of government,” Harlow
v. Fitzgerald, 457 U.S. 800, 818 (1982), by “protect[ing] government officials
performing discretionary functions from civil damage suits insofar as the officials’
conduct does not violate clearly established rights of which a reasonable person would
have known,” Porterfield v. Lott, 156 F.3d 563, 567 (4th Cir. 1998) (internal quotation
marks and alteration omitted). “To be clearly established, a right must be sufficiently
clear that every reasonable official would have understood that what he is doing violates
that right. In other words, existing precedent must have placed the statutory or
constitutional question beyond debate.” Reichle v. Howards, 132 S. Ct. 2088, 2093
(2012) (internal quotation marks, citations and alteration omitted).
As a general rule, we look only to “the decisions of the Supreme Court, this court
of appeals, and the highest court of the state in which the case arose” when determining
25
whether the defendant is entitled to qualified immunity. Yates v. Terry, 817 F.3d 877,
887 (4th Cir. 2016) (internal quotation marks omitted). If the case law of this court has
addressed the relevant constitutional question, contrary rulings from other circuits are not
relevant to the qualified-immunity inquiry. See Edwards v. City of Goldsboro, 178 F.3d
231, 251 (4th Cir. 1999) (“If a right is recognized in some other circuit, but not in this
one, an official will ordinarily retain the immunity defense.” (internal quotation marks
and alteration omitted)). In the absence of controlling authority from either the Supreme
Court, this court, or the highest state court, however, the existence of “a consensus of
cases of persuasive authority” from other jurisdictions can be enough to foreclose a claim
of qualified immunity. Ashcroft v. al-Kidd, 563 U.S. 731, 746 (2011) (internal quotation
marks omitted); Owens ex rel. Owens v. Lott, 372 F.3d 267, 279-80 (4th Cir. 2004).
II.
In the majority’s view, there was no controlling authority from this circuit in 2010
addressing whether retaliation against an inmate for filing a grievance violates the
inmate’s rights under the First Amendment. The majority therefore looks to case law
from other circuits, finds a consensus, and holds that an inmate’s right to be free from
retaliation for participating in the grievance system was clearly established.
I do not disagree that the weight of authority outside this circuit holds that the First
Amendment is violated when prison officials retaliate against an inmate for filing a
grievance under an established grievance system. Where I disagree with the majority is
in its conclusion that case law from this circuit was silent on the relevant First
Amendment question. In my view, this court’s decision in Adams v. Rice could
26
reasonably be understood as holding that an inmate’s use of a prison grievance system
does not implicate the First Amendment and that grievance-based retaliation against the
inmate likewise does not implicate the First Amendment. Because Adams can reasonably
be understood to permit the actions of the prison officials at issue in this case, the
majority erred by looking outside the circuit to conclude otherwise. See Edwards, 178
F.3d at 251.
A.
In Adams, a North Carolina inmate requested a transfer to protective custody after
he was threatened by other inmates. State prison officials approved that request and
directed that the inmate be transferred to the protective custody facility at a different
prison. The inmate was never transferred, however, but was instead held in segregation
for nine months. He was released from segregation and transferred to another prison
after he withdrew his request for protective custody. See Adams, 40 F.3d at 73.
Proceeding in forma pauperis under the version of 28 U.S.C. § 1915 then in effect,
the inmate thereafter filed a lawsuit alleging that prison officials, in retaliation for his
protective-custody request, had refused to transfer him to the protective-custody facility,
“denied him minimum custody status, failed to schedule a parole eligibility date and
hearing, and barred his access to the grievance process.” Adams, 40 F.3d at 74. The
district court concluded that the inmate’s claim lacked an arguable basis in law or in fact
and therefore dismissed the inmate’s claims as frivolous. See Neitzke v. Williams, 490
U.S. 319, 325 (1989) (“[A] complaint . . . is frivolous where it lacks an arguable basis
either in law or in fact.”).
27
The inmate appealed, contending that his complaint at least arguably stated claims
of retaliation for the exercise of constitutionally protected rights. Because the Eighth
Amendment protects inmates “from physical harm at the hands of fellow inmates
resulting from the deliberate or callous indifference of prison officials to specific known
risks of such harm,” Pressly v. Hutto, 816 F.2d 977, 979 (4th Cir. 1987), the inmate
contended that his reporting of the threats against him and request for protective custody
were at least arguably protected by the Eighth Amendment:
Given that prisoners’ right to be protected hinges to a large extent on
whether the risks are known by the prison officials to exist, it is arguable,
that prisoners must perforce have a right to be free from retaliation in
reporting such risks to those same officials. Freedom to report such
incidents would appear to be an essential ingredient to the exercise of the
recognized right to be free from harms prison officials know about and are
in a position to prevent.
Adams v. Rice, Brief of Appellant, 1994 WL 16014459, at *17.
This court rejected the inmate’s arguments. We first agreed with the district court
that the inmate’s claims were factually frivolous, as there were no allegations in the
complaint asserting that the single-cell housing the inmate received was in any way
different from the protective custody he requested. See Adams, 40 F.3d at 75.
We likewise agreed with the district court’s determination that the complaint was
legally frivolous. As we explained, “claims of retaliatory actions are legally frivolous
unless the complaint implicates some right that exists under the Constitution. That is,
plaintiffs must allege either that the retaliatory act was taken in response to the exercise
of a constitutionally protected right or that the act itself violated such a right.” Id.
28
Applying that standard, we rejected the inmate’s claim that he exercised an Eighth
Amendment right when he requested protective custody:
Appellant’s assertion of a “right to inform” states only a claim of
entitlement to a particular grievance procedure because he seeks, in
essence, a means of bringing complaints regarding his incarceration to the
attention of prison officials. As other circuits have recognized, there is no
constitutional right to participate in grievance proceedings.
Id. Addressing the specific instances of retaliation by prison officials alleged by the
inmate, we explained that the inmate’s claims were doomed by the absence of an
underlying constitutional right. See id. As is most relevant to this case, we explained
that the inmate’s claim that prison officials prevented him from accessing the prison
grievance system was legally frivolous because “the Constitution creates no entitlement
to grievance procedures or access to any such procedure voluntarily established by a
state.” Id.
B.
The majority reads Adams as holding that “inmates have no constitutional
entitlement or due process interest in access to a grievance procedure. An inmate thus
cannot bring a § 1983 claim alleging denial of a specific grievance process, for example.”
Majority Op. at 13. According to the majority,
Adams is entirely silent on the issue in this case – whether an inmate’s First
Amendment right is violated when he is retaliated against for submitting a
grievance pursuant to an existing grievance procedure. That a prison is not
required under the Constitution to provide access to a grievance process
does not mean that prison officials who retaliate against inmates for filing
grievances do not violate the Constitution.
29
Id. Because Adams does not “explicitly address” the constitutional right being pressed in
this case, id. at 15, the majority dismisses Adams entirely and turns to cases outside this
circuit to find the right clearly established.
I believe the majority interprets Adams far too narrowly. Adams makes two
separate holdings addressing prison grievance systems. First, Adams holds that an
inmate cannot demand a grievance system structured to address whatever complaints he
might want to raise. See Adams, 40 F.3d 75 (rejecting inmate’s claim of entitlement to “a
means of bringing complaints regarding his incarceration to the attention of prison
officials”); id. (“[T]he Constitution creates no entitlement to grievance procedures . . . .”).
Second, Adams holds that inmates have no constitutional right to participate in a prison’s
existing grievance system. See id. (“[T]here is no constitutional right to participate in
grievance proceedings.”); id. (“[T]he Constitution creates no entitlement to . . . access to
any [grievance] procedure voluntarily established by a state.”). An inmate participates in
a grievance system, of course, by filing a grievance.
When discussing Adams, the majority acknowledges the second holding only
indirectly, by referring to an unpublished opinion that “properly applied Adams” to reject
an inmate’s constitutional claim based on refusal to supply grievance forms. Majority
Op. at 15. The majority, however, never grapples with the implications of Adams’
second holding except to suggest, indirectly, that while there may be no First Amendment
right to file a grievance, if a grievance is in fact filed, retaliation based on the grievance
violates the First Amendment. See id. (discussing unpublished opinion that
“misconstrued Adams to preclude an inmate from bringing a First Amendment claim
30
alleging retaliation in response to his verbal complaints to prison officials.”). I do not
believe that Adams can be distinguished in this manner.
As we explained in Adams, retaliation claims are actionable under § 1983 only if
“the complaint implicates some right that exists under the Constitution. That is, plaintiffs
must allege either that the retaliatory act was taken in response to the exercise of a
constitutionally protected right or that the act itself violated such a right.” Adams, 40
F.3d at 75 (emphasis added). If an inmate has no constitutional right to file a grievance,
as Adams held, then the inmate exercises no constitutional right by filing a grievance.
And if filing a grievance implicates no constitutional right, then retaliation against the
inmate because of the grievance does not violate the Constitution. See id. (“A claim of
retaliation that fails to implicate any constitutional right lacks even an arguable basis in
law.” (internal quotation marks omitted)). I simply see no basis for concluding, as the
majority apparently does, that the act of filing a grievance -- an act that is not
constitutionally protected -- somehow imbues the filing with constitutional protections.
Accordingly, it seems to me that this court’s decision in Adams affirmatively
closes the door to the retaliation claim being asserted here. While there may be no single
sentence in Adams that explicitly states that retaliation based on an inmate’s filing of a
grievance will not support a constitutional claim under § 1983, the qualified-immunity
inquiry does not require that level of specificity. See, e.g., Odom v. S.C. Dep't of Corr.,
349 F.3d 765, 773 (4th Cir. 2003) (explaining that the qualified-immunity analysis “must
take into consideration not only already specifically adjudicated rights, but those
manifestly included within more general applications of the core constitutional principle
31
invoked” (internal quotation marks omitted)). For the reasons outlined above, the
conclusion that the retaliation alleged in this case is not sufficient to support a claim of
retaliation under § 1983 follows inexorably from Adams’ clear and explicit holding that
inmates have “no constitutional right to participate in grievance proceedings.” Adams, 40
F.3d at 75.
Even if it were somehow possible to draw the majority’s fine, lawyerly line
between this case and Adams, it still would not be appropriate to deny qualified
immunity. The qualified-immunity inquiry focuses on notice – whether the existing
precedent gives the officials “fair notice that they are acting unconstitutionally.”
Mullenix v. Luna, 136 S. Ct. 305, 314 (2015) (per curiam) (internal quotation marks
omitted). Thus, the question is not whether this court can come up with a plausible way
of distinguishing Adams from the facts of the case at bar; the question is whether, in light
of Adams, a prison official could “reasonably believe[] that his or her conduct complies
with the law.” Pearson v. Callahan, 555 U.S. 223, 244 (2009).
For the reasons outlined above, I believe that a reasonable prison official could
read Adams as permitting the actions that were taken in this case. Indeed, the
reasonableness of such a reading is confirmed by the fact that this court has applied
Adams in that very way. See Daye v. Rubenstein, 417 F. App’x 317, 319 (4th Cir. 2011)
(per curiam) (applying Adams to reject inmate’s claim that prison officials violated his
32
First Amendment rights by retaliating against him for filing a verbal grievance). 1 While
the majority now says that Daye “misconstrued” Adams, Majority Op. at 15, the question
is not whether that reading of Adams ultimately proves to be wrong, but whether that
reading of Adams is reasonable:
In interpreting qualified immunity . . . , we must appreciate the fact
that the direction of the law may be difficult to ascertain. Thus, although
public officials may be charged with knowledge of constitutional
developments, they are not required to predict the future course of
constitutional law. . . . The requirement, after all, is that the law be clearly
established, not simply possibly established or even probably established.
Since qualified immunity is appropriate if reasonable officers could
disagree on the relevant issue, it surely must be appropriate when
reasonable jurists can do so.
Swanson v. Powers, 937 F.2d 965, 968 (4th Cir. 1991) (emphasis added; citation and
internal alteration omitted); see Saucier v. Katz, 533 U.S. 194, 205 (2001) (“The concern
of the immunity inquiry is to acknowledge that reasonable mistakes can be made as to
the legal constraints on particular police conduct. . . . If the officer’s mistake as to what
the law requires is reasonable, . . . the officer is entitled to the immunity defense.”
1
The panel of judges deciding Daye included Judge Wilkinson, who wrote the
opinion in Adams. That the author of Adams agreed with the analysis in Daye provides
an additional indication of the reasonableness of its analysis.
Although unpublished opinions do not clearly establish constitutional rights and
thus cannot be relied upon to impose liability on a government official, see Hogan v.
Carter, 85 F.3d 1113, 1118 (4th Cir. 1996) (en banc), I do not believe Hogan precludes
consideration of unpublished opinions when declining to impose liability, see id. (“We
could not allow liability to be imposed upon public officials based upon unpublished
opinions that we ourselves have determined will be binding only upon the parties
immediately before the court.”).
33
(emphasis added)), overruled on other grounds by Pearson v. Callahan, 555 U.S. 223
(2009).
In my view, Adams directly, though not explicitly, forecloses Booker’s retaliation
claim. But even if the distinction between this case and Adams that the majority
apparently embraces were viable, a reasonable prison official could still conclude that the
actions alleged in this case were permissible under this court’s decision in Adams. See
Reichle, 132 S. Ct. at 2093 (qualified immunity should be granted unless the
unlawfulness of the challenged action would be apparent to “every reasonable official.”
(internal quotation marks omitted)). I therefore believe that the defendants are entitled to
qualified immunity.
C.
I recognize, of course, that other circuits considering the issue have concluded that
prison officials violate the First Amendment if they retaliate against an inmate for filing a
grievance. Regardless of how compelling the majority may find the analysis of those
cases, they simply are not relevant to our qualified-immunity inquiry.
As this court has frequently explained, “[a] decision of a panel of this court
becomes the law of the circuit and is binding on other panels unless it is overruled by a
subsequent en banc opinion of this court or a superseding contrary decision of the
Supreme Court.” United States v. Collins, 415 F.3d 304, 311 (4th Cir. 2005) (internal
quotation marks omitted). Because Adams is binding, controlling authority that rejects
Booker’s claim, the majority errs by dismissing Adams and relying on cases outside this
circuit to deny qualified immunity. See Owens, 372 F.3d at 280 (explaining that when
34
performing the qualified-immunity analysis, courts may look to case law from other
circuits only if there is no “controlling authority”); Edwards, 178 F.3d at 251 (“If a right
is recognized in some other circuit, but not in this one, an official will ordinarily retain
the immunity defense.” (internal quotation marks and alteration omitted)).
If the majority believes Adams was wrongly decided, 2 the proper way to correct
the error is through en banc proceedings. The majority’s chosen path of artificially
narrowing the reach of Adams’ holdings and then dismissing the case as irrelevant
because it is not “directly on-point,” Majority Op. at 16, is disingenuous and inconsistent
2
The majority grounds the right at issue in this case in the First Amendment’s
Petition Clause, and the majority seems to suggest that Adams’ determination that
inmates have no constitutional right to participate in grievance proceedings is wrong
because exhaustion of remedies is generally required before a prisoner can file a civil
action challenging his conditions of confinement. See Majority Op. at 18. I disagree.
Adams was decided in 1994, before the PLRA made exhaustion of “available”
administrative remedies a mandatory prerequisite for all prison-condition lawsuits. 42
U.S.C. § 1997e(a); see Woodford v. Ngo, 548 U.S. 81, 84–85 (2006) (explaining
evolution of exhaustion requirements). Nonetheless, as the Eighth Circuit explained in
Flick v. Alba, 932 F.2d 728 (8th Cir. 1991) (per curiam) -- a case we relied on in Adams -
- “the prisoner’s right to petition the government for redress is the right of access to the
courts.” Id. at 729 (emphasis added). If prison officials prevented an inmate from
pursuing a grievance through an existing grievance system, then the administrative
remedies were not “available” to the inmate, and the PLRA would not bar the inmate
from pursuing his claim in court. See, e.g., Kervin v. Barnes, 787 F.3d 833, 835 (7th Cir.
2015) (explaining that if a state creates a grievance system “yet prevents a prisoner from
utilizing it he will be excused from having to exhaust the grievance process as a
prerequisite to suing in federal court”); Miller v. Norris, 247 F.3d 736, 740 (8th Cir.
2001) (“[A] remedy that prison officials prevent a prisoner from utilizing is not an
available remedy under § 1997e(a) . . . .” (internal quotation marks and alteration
omitted)). Adams’ conclusion that there is no constitutional right to file a grievance,
even when considered in light of the PLRA’s mandatory exhaustion requirement, does
not restrict an inmate’s rights under the Petition Clause.
35
with our approach to resolving questions of qualified immunity and with our obligation to
follow our own precedent.
III.
In Adams, this court held that “there is no constitutional right to participate in
grievance proceedings.” 40 F.3d at 75 (emphasis added). Because inmates participate in
grievance proceedings by filing a grievance, our decision in Adams must be understood
as holding that inmates have no constitutional right to file a grievance. The filing of a
grievance therefore implicates no constitutional right of the inmate and cannot support a
retaliation claim against prison officials. See id. (“[C]laims of retaliatory actions are
legally frivolous unless the complaint implicates some right that exists under the
Constitution. That is, plaintiffs must allege either that the retaliatory act was taken in
response to the exercise of a constitutionally protected right or that the act itself violated
such a right.” (emphasis added)).
Adams is binding authority that directly rejects the constitutional right asserted in
this case. The majority errs by ignoring Adams and relying instead on out-of-circuit
cases that are inconsistent with our holding in Adams in order to declare that an inmate’s
right to be free from retaliation for filing a grievance was clearly established.
Accordingly, for the foregoing reasons, I believe that the defendants are entitled to
qualified immunity, and I therefore respectfully dissent from the majority’s contrary
conclusion.
36