Opinion
C/A 8:20-cv-00149-RMG-JDA
08-27-2021
Demetric Hardaway, Plaintiff, v. Lori Myers Defendant.[1]
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
Jacquelyn D. Austin United States Magistrate Judge
This matter is before the Court on a motion for summary judgment filed by Defendant. [Doc. 67.] Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(d), D.S.C., this magistrate judge is authorized to review all pretrial matters in cases filed under 42 U.S.C. § 1983 and to submit findings and recommendations to the District Court.
Plaintiff, proceeding pro se and in forma pauperis, filed this action on January 10, 2020. [Doc. 1.] Thereafter, on February 28, 2020, he filed an Amended Complaint. [Doc. 11.] Except for one, all of the claims in Plaintiff's Amended Complaint have been dismissed by the Court. [Doc. 23.] The single remaining claim is Plaintiff's First Amendment retaliation claim asserting that Defendant removed Plaintiff from a work assignment with the litter crew and reassigned him to the chicken farm after Plaintiff filed a grievance alleging he had been subjected to unhealthy, hazardous, and unsanitary work conditions. [Doc. 23 at 9-10, 13.]
A prisoner's pleading is considered filed at the moment it is delivered to prison authorities for forwarding to the court. See Houston v. Lack, 487 U.S. 266, 270 (1988). Accordingly, this action was filed on January 10, 2020. [Doc. 1-1 at 1 (envelope stamped as received by the MacDougall prison mailroom on January 10, 2020).]
On May 7, 2021, Defendant filed a motion for summary judgment. [Doc. 67.] On May 10, 2021, the Court issued an Order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Plaintiff of the summary judgment/dismissal procedure and the possible consequences if he failed to adequately respond to the motion. [Doc. 68.] Plaintiff's response in opposition was entered on the docket on July 12, 2021. [Doc. 73.] The motion is now ripe for review.
The facts in this Background section are taken directly from Plaintiff's Amended Complaint. [Doc. 11.]
Plaintiff is a state inmate currently incarcerated at Goodman Correctional Institution. [Doc. 75.] The allegations in the Complaint relate to Plaintiff's incarceration at MacDougall Correctional Institution. [Doc. 11.] On May 30, 2019, Plaintiff filed an inmate grievance outlining the inadequate work conditions of his litter crew work assignment. [Id. at 6.] Defendant was assigned to investigate the claims described in the grievance. [Id.] Plaintiff alleges that, shortly after filing his grievance, Defendant removed him from the litter crew, and, on June 11, 2019, Plaintiff was reassigned to the chicken farm. [Id.]
Following his reassignment, Plaintiff was asked to sign a job board review waiver, which he rejected, and Plaintiff was threatened with a disciplinary charge if he did not sign the waiver. [Id. at 6-7.] According to Plaintiff, had he signed the job board review waiver, he would have waived his right to have a hearing with the Institutional Classification Committee. [Id. at 7.] Even though Plaintiff refused to sign the waiver, he was still not afforded a job board review hearing. [Id.] Plaintiff alleges the work reassignment was made in retaliation for his filing a grievance concerning the conditions of confinement. [Id.] Plaintiff contends that, prior to the work reassignment, he was projected to apply for a designated facility transfer on July 14, 2019, allowing him to receive inmate pay. [Id.] Plaintiff alleges that Defendant was aware of his desire for a designated facility transfer and that his work reassignment would hinder him from meeting the projected facility transfer and set him back six months. [Id.]
Plaintiff alleges that, on June 25, 2019, he filed an inmate grievance related to his retaliation claim. [Id.] Plaintiff alleges that Frances Johnson, the Inmate Grievance Coordinator, told him that he could not file a grievance in relation to Defendant's conduct of reassigning him to the chicken farm. [Id.] According to Plaintiff, Johnson “appear[ed] to process the grievance as other, but she describe[d] the grievance as being the same as the grievance outlining the work related inadequacies.” [Id.] Thus, Plaintiff alleges, Johnson marked the second grievance as a duplicate, even though it was not. [Id.] As a result, Johnson misrepresented Plaintiff's claims, thus manipulating the grievance system. [Id.] Plaintiff alleges that, on August 21, 2019, he forwarded a Request to Staff Member (?RTSM”) addressed to headquarters, but he has not received a response to that letter. [Id. at 10.]
For his injuries, Plaintiff alleges that he has suffered fluctuating blood pressure, weight loss, and financial loss. [Id. at 12.] For his relief, Plaintiff seeks compensatory, monetary, and punitive damages in an amount determined by the Court. [Id.]
APPLICABLE LAW
Liberal Construction of Pro Se Complaint
Plaintiff brought this action pro se, which requires the Court to liberally construe his pleadings. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam); Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978); Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Pro se pleadings are held to a less stringent standard than those drafted by attorneys. Haines, 404 U.S. at 520. The mandated liberal construction means that only if the court can reasonably read the pleadings to state a valid claim on which the complainant could prevail, it should do so. Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999). A court may not construct the complainant's legal arguments for him. Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993). Nor should a court “conjure up questions never squarely presented.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
Requirements for a Cause of Action Under § 1983
This action is filed pursuant to 42 U.S.C. § 1983, which provides a private cause of action for constitutional violations by persons acting under color of state law. Section 1983 “‘is not itself a source of substantive rights,' but merely provides ‘a method for vindicating federal rights elsewhere conferred.'” Albright v. Oliver, 510 U.S. 266, 271 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)). Accordingly, a civil action under § 1983 allows “a party who has been deprived of a federal right under the color of state law to seek relief.” City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 707 (1999). Section 1983 provides, in relevant part,
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States or any person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . .42 U.S.C. § 1983. To establish a claim under § 1983, a plaintiff must prove two elements: (1) that the defendant “deprived [the plaintiff] of a right secured by the Constitution and laws of the United States” and (2) that the defendant “deprived [the plaintiff] of this constitutional right under color of [State] statute, ordinance, regulation, custom, or usage.” Mentavlos v. Anderson, 249 F.3d 301, 310 (4th Cir. 2001) (third alteration in original) (citation and internal quotation marks omitted).
The under-color-of-state-law element, which is equivalent to the “state action” requirement under the Fourteenth Amendment,
reflects judicial recognition of the fact that most rights secured by the Constitution are protected only against infringement by governments. This fundamental limitation on the scope of constitutional guarantees preserves an area of individual freedom by limiting the reach of federal law and avoids imposing on the State, its agencies or officials, responsibility for conduct for which they cannot fairly be blamed.Id. (quoting Dowe v. Total Action Against Poverty in Roanoke Valley, 145 F.3d 653, 658 (4th Cir. 1998)) (internal citations and quotation marks omitted). Nevertheless, “the deed of an ostensibly private organization or individual” may at times be treated “as if a State has caused it to be performed.” Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass'n, 531 U.S. 288, 295 (2001). Specifically, “state action may be found if, though only if, there is such a ‘close nexus between the State and the challenged action' that seemingly private behavior ‘may be fairly treated as that of the State itself.'” Id. (quoting Jackson v. Metro. Edison Co., 419 U.S. 345, 351 (1974)). State action requires both an alleged constitutional deprivation “caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State . . . or by a person for whom the State is responsible” and that “the party charged with the deprivation [is] a person who may fairly be said to be a state actor.” Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982). A determination of whether a private party's allegedly unconstitutional conduct is fairly attributable to the State requires the court to “begin[ ] by identifying ‘the specific conduct of which the plaintiff complains.'” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 51 (1999) (quoting Blum v. Yaretsky, 457 U.S. 991, 1004 (1982)).
Summary Judgment Standard
Rule 56 of the Federal Rules of Civil Procedure states, as to a party who has moved for summary judgment: “The court shall grant summary judgment 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.” Fed.R.Civ.P. 56(a). A fact is “material” if proof of its existence or non-existence would affect disposition of the case under applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of material fact is “genuine” if the evidence offered is such that a reasonable jury might return a verdict for the non-movant. Id. at 257. When determining whether a genuine issue has been raised, the court must construe all inferences and ambiguities against the movant and in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
The party seeking summary judgment shoulders the initial burden of demonstrating to the court that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, may not rest on the allegations averred in his pleadings. Id. at 324. Rather, the non-moving party must demonstrate specific, material facts exist that give rise to a genuine issue. Id. Under this standard, the existence of a mere scintilla of evidence in support of the non-movant's position is insufficient to withstand the summary judgment motion. Anderson, 477 U.S. at 252. Likewise, conclusory allegations or denials, without more, are insufficient to preclude granting the summary judgment motion. Id. at 248. “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Anderson, 477 U.S. at 248. Further, Rule 56 provides in pertinent part:
A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.Fed. R. Civ. P. 56(c)(1). Accordingly, when Rule 56(c) has shifted the burden of proof to the non-movant, he must produce existence of a factual dispute on every element essential to his action that he bears the burden of adducing at a trial on the merits.
DISCUSSION
Defendant argues that she is entitled to summary judgment on Plaintiff's retaliation claim because Plaintiff has failed to forecast evidence that the allegedly retaliatory conduct was of the type that would deter an ordinary person from pursuing a grievance. [Doc. 67-1 at 15-16.] The Court agrees.
Because the Court concludes Defendant is entitled to summary judgment on this basis, the Court declines to address Defendant's alternative arguments.
To prove a First Amendment retaliation claim under § 1983, a Plaintiff must prove three elements:
First, the plaintiff must demonstrate that his or her speech was protected. See Huang v. Bd. of Governors, 902 F.2d 1134, 1140 (4th Cir. 1990). Second, the plaintiff must demonstrate that the defendant's alleged retaliatory action adversely affected the plaintiff's constitutionally protected speech. See [ACLU of Md., Inc. v. ]Wimico Cty., 999 F.2d [780, ] 785 [(4th Cir. 1993)] (stating that “a showing of adversity is essential to any retaliation claim”). Third, the plaintiff must demonstrate that a causal relationship exists between its speech and the defendant's retaliatory action. See Huang, 902 F.2d at 1140.Booker v. Lewis, No. 2:17-cv-02165-DCC, 2019 WL 2117752, at *2 (D.S.C. May 15, 2019). “[F]or purposes of a First Amendment retaliation claim under § 1983, a person 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.” Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 500 (4th Cir. 2005).
Here, Plaintiff has not forecasted evidence sufficient to establish the second prong. In fact, he has not forecasted evidence that the change in his work assignment affected him negatively in any way or that the new assignment was in any way less desirable than the old one. Moreover, Plaintiff himself was not deterred from exercising his First Amendment rights after the transfer, as is shown by the fact that after the transfer he filed three RTSMs regarding the litter crew's work conditions and his transfer, referenced the transfer in his Step 2 grievance relating to conditions at MacDougal, and initiated the present lawsuit. [Docs. 67-8; 67-9 at 4.] See Booker, 2019 WL 2117752, at *3 (granting summary judgment against the plaintiff when he failed to forecast evidence that the alleged retaliatory action was likely to deter a person from ordinary firmness from exercising his First Amendment rights and also failed to forecast evidence that it actually chilled his exercise of those rights). Accordingly, the Court recommends that Defendant's motion for summary judgment be granted.
In fact, in his response opposing Defendant's summary judgment motion, Plaintiff does not even acknowledge Defendant's argument that he failed to forecast evidence that the allegedly retaliatory conduct was of the type that would deter an ordinary person from pursuing a grievance. [Doc. 73.] The Court notes that Plaintiff alleges in his Amended Complaint that, prior to the work reassignment, he was projected to apply for a designated facility transfer on July 14, 2019, allowing him to receive inmate pay. [Doc. 11 at 7.] Plaintiff alleges that his work reassignment would hinder him from meeting the projected facility transfer and set him back six months. [Id.] Regarding this allegation, even assuming that his claim would otherwise be viable, Plaintiff has forecasted no evidence regarding the likelihood that he would actually have received his preferred transfer had he not been reassigned to the chicken farm.
RECOMMENDATION
In light of all the foregoing, it is recommended that Defendant's motion for summary judgment [Doc. 67] be GRANTED.
IT IS SO RECOMMENDED.