Inmates in South Carolina prisons have no constitutional right to the grievance policy that the corrections department provides, but they do have the right — should they file a grievance — not to be retaliated against, a divided 4th U.S. Circuit Court of Appeals held April 28.
The court tackled a question not previously decided by controlling authority in the state: Was inmate Patrick Booker’s right to be free from retaliation for filing a grievance clearly established?
Based on rulings from other jurisdictions and the South Carolina Department of Corrections’ own policy, the court found that it was.
“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,” Chief Judge Roger Gregory wrote for the majority.
Sealed, with a (alleged) diss
Booker brought a section 1983 claim, alleging that he received a disciplinary charge in retaliation for filing a prison grievance.
According to court records, Booker mailed a legal document to the Dorchester County Sheriff’s Office in 2010 but forgot to affix the mailing address. When the mail was returned to him, he realized that the envelope had slit along the edge. Booker began the grievance process by submitting a Request to Staff Member form to the mailroom supervisor, Sylvia Jones. In the form, Booker objected to the opening of his legal mail and expressed his intention to pursue criminal and civil remedies if it happened again.
Jones alleged that Booker also verbally threatened her. Booker was charged with threatening an employee but subsequently found not guilty because his threats were of a legal nature, not physical.
In June 2012, Booker sued the SCDC, Jones, and two other SCDC employees for violating his First Amendment rights by filing a false disciplinary charge in retaliation for his filing of the RSM form. The defendants filed for summary judgment.
No harm, no foul
The district court granted that motion, finding that Booker failed to produce sufficient evidence that he suffered adverse action as a result of the disciplinary charge.
In the first appeal, the appeals court found that Booker “produced sufficient evidence that Jones’ conduct would likely deter prisoners of ordinary firmness from exercising their First Amendment rights” and that the evidence, viewed in the light most favorable to Booker, showed that the disciplinary charge filed against him was false.
The court did not decide whether Booker’s filing of the RSM form was constitutionally protected.
On remand, defendants were again granted summary judgment when the district court found that an inmate’s free speech right to submit internal grievances was not clearly established — though it was “perhaps sufficiently recognized in other federal circuits” — because there had been no published case law from the U.S. Supreme Court, the 4th Circuit or the South Carolina Supreme Court. Accordingly, the defendants were entitled to qualified immunity.
Reviewing the issue de novo, the 4th Circuit noted that qualified immunity protects officials who commit constitutional violations but in light of “clearly established law” could believe that their actions were lawful.
A right is clearly established, the court wrote while quoting 2014’s Supreme Court decision in Carroll v. Carman, when its contours are sufficiently clear that “a reasonable official would understand what he is doing violates that right.”
“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,” Gregory wrote, citing another Supreme Court case, Hope v. Pelzer.
The court found no decisions from courts of controlling authority regarding what defines “clearly established” and turned to “a consensus of cases of persuasive authority from other jurisdictions,” as articulated by Chief Justice Rehnquist in 1999’s Wilson v. Layne.
So, was it clearly established that an inmate’s right to petition is violated when he is retaliated against for doing so?
Booker argued that the 4th Circuit never discussed in a published opinion whether inmates have a First Amendment right to be free from retaliation for filing grievances. The SCDC agreed that the court had never explicitly considered the right, but contended that a 1994 case, Adams v. Rice, resolved the issue in its favor.
Too close to court
The SCDC, the court wrote, understood Adams to suggest that inmates do not exercise any constitutional right when they file a grievance. The court found, however, that while Adams established that an inmate has no constitutional entitlement or due process interest in access to a grievance procedure, it was “entirely silent” on whether an inmate’s First Amendment right is violated “when he is retaliated against for submitting a grievance pursuant to an existing grievance procedure.”
Gregory wrote that the 8th Circuit explained in 1989, in Sprouse v. Babcock, that prison officials could not bring a disciplinary action against a prisoner for filing what they perceived to be a meritless grievance any more than they could bring a disciplinary action against a prisoner for filing a lawsuit judicially determined to be without merit.
The court noted that the 2nd, 6th, 7th, 9th, 11th, and D.C. circuits also have recognized, in published opinions, that inmates possess a First Amendment right to be free from retaliation in response to filing a grievance.
Further, in addition to Supreme Court precedent, Gregory noted that the 4th Circuit has long held that prison officials may not retaliate against prisoners for exercising their right to access the courts.
Scott Holmes, a Durham, North Carolina, attorney and law professor at the North Carolina Central School of Law, is not involved in Booker, but discussed the case with Lawyers Weekly. He noted that the state Court of Appeals has “recognized in dicta” that retaliation against the exercise of access to courts would state a constitutional claim.
“This was the basis of the Fourth Circuit finding that retaliation against an inmate for filing a grievance would also state a claim because the of close relation between filing a grievance and filing a complaint in court,” Holmes said.
According to the majority, there will rarely be “such an overwhelming consensus of authority” recognizing that particular conduct violates a constitutional right. This time, it’s “beyond question,” Gregory wrote.
“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,” he added.
No right, then no wrong
In his dissent, Judge William Traxler Jr. wrote that while a prisoner’s right to be free from retaliation may have been clearly established in other circuits, case law from the 4th Circuit “could reasonably be understood as foreclosing that claim.”
Traxler said that he didn’t disagree that authority outside the circuit regarding the First Amendment violation in this case, but disagrees with the majority’s finding that Adams was silent on the relevant question. And because no controlling law put prison officials on notice that their conduct violated Booker’s rights, they should be entitled to qualified immunity.
“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,” Traxler wrote. “And if filing a grievance implicates no constitutional right, then retaliation against the inmate because of the grievance does not violate the Constitution.”
The majority also pointed to the correction department’s own policy, communicated to prison employees at orientation, as evidence of “fair warning,” in finding that a reasonable official in Jones’ position would have known that retaliating against an inmate in this situation was unlawful. As such, the court held, the agency is not entitled to qualified immunity.
Booker’s appellate attorney, David Zionts of Washington, did not return a message seeking comment.
The 36-page decision is Booker v. S.C. Dep’t of Corrections (Lawyers Weekly No. 001-102-17). An opinion digest is available online at sclawyersweekly.com.
Follow Heath Hamacher on Twitter @SCLWHamacher