Emmanuel Shaw v. T. Foreman ( 2023 )

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-7185
EMMANUEL KING SHAW,
Plaintiff - Appellant,
v.
T. S. FOREMAN, Unit Manager; M. MURPHY, Unit Manager; T. LEABOUGH,
Hearings Officer; N. LEACH, Counselor; F. L. ADAMS, Lieutenant,
Defendants - Appellees.
Appeal from the United States District Court for the Eastern District of Virginia, at
Alexandria. Claude M. Hilton, Senior District Judge. (1:18-cv-01286-CMH-IDD)
Argued: October 27, 2022 Decided: February 3, 2023
Before GREGORY, Chief Judge, WYNN, Circuit Judge, and FLOYD, Senior Circuit
Judge.
Reversed and remanded by published opinion. Senior Judge Floyd wrote the opinion in
which Chief Judge Gregory and Judge Wynn joined.
ARGUED: Daniel Steven Severson, KELLOGG HANSEN TODD FIGEL &
FREDERICK PLLC, Washington, D.C., for Appellant. Lucas W.E. Croslow, OFFICE OF
THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellees. ON
BRIEF: Jason S. Miyares, Attorney General, Charles H. Slemp, III, Chief Deputy
Attorney General, Andrew N. Ferguson, Solicitor General, Erika L. Maley, Principal
Deputy Solicitor General, M. Jordan Minot, Assistant Solicitor General, OFFICE OF THE
ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellees.
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FLOYD, Senior Circuit Judge:
Plaintiff-Appellant Emmanuel King Shaw was an inmate at Sussex I State Prison
(SISP) in 2017. A female correctional officer at SISP charged Shaw with a disciplinary
offense, alleging that he directed lewd behavior toward her in the prison showers. Shaw
denied the allegation, contending that security-camera footage would vindicate him.
Subsequent to what Shaw alleged was a defective disciplinary-hearing process, prison
officials found that he committed the offense and transferred him to a maximum-security
facility. Based on the defects that Shaw perceived in the hearing process and subsequent
transfer, he commenced a pro se civil action, levying a procedural due process claim and a
First Amendment retaliation claim against Defendants-Appellees T.S. Foreman, M.
Murphy, T. Leabough, N. Leach, and F.L. Adams (collectively, the “Prison Officials”).
The district court dismissed Shaw’s procedural due process claim, then granted summary
judgment—pre-discovery—in favor of the Prison Officials on the remaining First
Amendment retaliation claim. Shaw now appeals. For the reasons that follow, we reverse
and remand.
I.
Shaw is presently serving a more than fifty-year sentence for abduction, robbery,
burglary, and use of a firearm in commission of a felony. In 2017, he was housed in SISP.
On July 19, 2017, a female correctional officer at SISP charged him with a disciplinary
offense for allegedly masturbating in her direction while he showered. He denied the
allegation, arguing that security-camera footage would prove his innocence. The prison
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scheduled a disciplinary hearing for July 27, 2017 and moved Shaw to administrative
segregation pending the hearing.
The disciplinary hearing was postponed, and Shaw, still in segregation, commenced
a hunger strike to protest the delay. According to Shaw, SISP’s internal policies mandated
that he receive a hearing within fifteen days of his alleged violation. From August 2 to
August 10, he filed multiple internal complaints and sent multiple letters to correctional
officials regarding the delay. These included a letter sent on August 9 to the Offender
Discipline Unit Manager at the Virginia Department of Corrections in Richmond, Virginia.
According to Shaw, prison staff intercepted and opened some of these letters before
returning them to him on the pretense of a faulty destination address.
A hearing officer eventually conducted Shaw’s disciplinary hearing on August 17,
2017. According to Shaw, the officer refused to review exculpatory security-camera
footage and proceeded to find that Shaw committed the charged offense—largely basing
that finding on testimony from the charging officer. Given Shaw’s history of disciplinary
charges relating to “lewd or obscene acts against staff, particularly female staff,” he
qualified for transfer to a higher-security facility. J.A. 188. SISP transferred Shaw to Red
Onion State Prison, a maximum-security prison, on September 18, 2017.
Proceeding pro se, Shaw sued the Prison Officials on October 11, 2018, alleging a
violation of his procedural due process rights based on their failure to provide him with a
timely disciplinary hearing—and his relegation to disciplinary segregation throughout the
delay. He also alleged First Amendment retaliation, arguing (1) that he engaged in
protected activity by filing internal complaints and by sending various letters, including his
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August 9 letter addressed to the Offender Discipline Unit Manager at the Virginia
Department of Corrections in Richmond, (2) that the Prison Officials were aware of his
protected activity because they received his complaints and intercepted his mail, and (3)
that they retaliated against him by denying him a fair disciplinary hearing and by
transferring him to Red Onion.
The district court dismissed Shaw’s procedural due process claim pursuant to 28
U.S.C. § 1915A, reasoning that his theory of a liberty-interest violation relied wholly on
his extended relegation to administrative segregation pending his disciplinary hearing. The
court concluded that “presence in segregation alone does not constitute atypical and
significant hardship” such that it gives rise to a sufficient liberty interest. J.A. 90. The
court subsequently noted that “[i]t is normal practice in pro se prisoner civil actions for
defendants to file dispositive motions, if warranted and appropriate, before the start of
discovery.” J.A. 91 (emphasis omitted). Shortly thereafter, and before any discovery
commenced, the Prison Officials moved for summary judgment on the remaining
retaliation claim. The district court granted their motion, ruling that Shaw provided
insufficient evidence of a causal connection between his protected activity and his extended
stay in administrative segregation, particularly because he engaged in protected activity
only after he had already been in segregation longer than appropriate under SISP policy.
The court also explained that, setting aside the sequential misalignment between his
protected activity and his placement in segregation, Shaw otherwise failed to provide
adequate direct or circumstantial evidence of a causal link between his protected activity
and the Prison Officials’ adverse action.
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Shaw now seeks reversal of both the dismissal of his procedural due process claim
and the grant of summary judgment in the Prison Officials’ favor on his retaliation claim.
Regarding the dismissal, he argues that the district court erred in finding that he failed to
plead a liberty interest beyond his interest in avoiding administrative segregation. He
further contends that he plausibly alleged inadequate due process based on the Prison
Officials’ refusal to review exculpatory video evidence during his disciplinary hearing, and
that this compromised process violated his liberty interest in avoiding transfer to a
maximum-security facility. Regarding summary judgment, he argues that the district court
erred in requiring him to prove “but-for” causation given this Court’s adoption of a “same-
decision” burden-shifting test in Martin v. Duffy (Martin II), 977 F.3d 294 (4th Cir. 2020).
He also contends that he presented sufficient evidence of a causal link between his
protected activity and the Prison Officials’ retaliatory conduct, and that the district court
erred by granting summary judgment without affording him any opportunity to conduct
discovery.
Regarding the dismissed due process claim, the Prison Officials respond that (1)
Shaw’s theory of the claim on appeal differs from what he pled before the district court,
and is therefore waived, and (2) qualified immunity bars his new theory of the claim.
Regarding the retaliation claim, the Prison Officials respond that (1) Shaw failed to offer
any evidence of a causal link between his protected activity and their alleged retaliation,
and (2) the district court did not abuse its discretion by not ordering discovery because
Shaw did not request it.
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II.
A.
This Court reviews de novo a district court’s dismissal for failure to state a claim
under 28 U.S.C. § 1915A. See Jehovah v. Clarke, 798 F.3d 169, 176 (4th Cir. 2015) (citing
Slade v. Hampton Rds. Reg’l Jail, 407 F.3d 243, 248 (4th Cir. 2005)). A district court
should not dismiss a plaintiff’s claim unless, “after accepting all well-pleaded allegations
in the plaintiff’s complaint as true and drawing all reasonable factual inferences from those
facts in the plaintiff’s favor, it appears certain that the plaintiff cannot prove any set of facts
in support of his claim entitling him to relief.” Martin v. Duffy (Martin I), 858 F.3d 239,
248 (4th Cir. 2017) (simplified). This Court reads pro se pleadings “liberally and
interpret[s] them ‘to raise the strongest arguments that they suggest.’” Martin II, 977 F.3d
at 298 (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)). Moreover, when an
action implicates a civil rights interest, “‘we must be especially solicitous of the wrongs
alleged’ and ‘must not dismiss the complaint unless it appears to a certainty that the
plaintiff would not be entitled to relief under any legal theory which might plausibly be
suggested by the facts alleged.’” Slade, 407 F.3d at 248 (simplified).
B.
The Due Process Clause of the Fourteenth Amendment prohibits states from
“depriv[ing] any person of life, liberty, or property, without due process of law.” U.S.
Const. amend. XIV, § 1. “To state a procedural due process [claim], a plaintiff must [first]
identify a protected liberty or property interest and [then] demonstrate deprivation of that
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interest without due process of law.” Prieto v. Clarke, 780 F.3d 245, 248 (4th Cir. 2015).
In the carceral context, “a prisoner claiming a violation of his right to procedural due
process must show: (1) that there is a state statute, regulation, or policy that creates such a
liberty interest, and (2) that the denial of such an interest imposes atypical and significant
hardship on the inmate in relation to the ordinary incidents of prison life.” Martin I, 858
F.3d at 253 (simplified).
Here, Shaw plausibly alleged a violation of his procedural due process rights. He
seems to concede on appeal that his temporary assignment to administrative segregation
does not give rise to an actionable liberty interest. But avoiding transfer to a maximum-
security prison suffices. As recognized by the Supreme Court, maximum-security facilities
like Red Onion have “highly restrictive conditions, designed to segregate the most
dangerous prisoners from the general prison population.” Wilkinson v. Austin, 545 U.S.
209, 213 (2005). Accordingly, incarceration in a maximum-security “environment [is] so
atypical and significant that it would give rise to a liberty interest ‘under any plausible
baseline.’” Incumaa v. Stirling, 791 F.3d 517, 530 (4th Cir. 2015) (quoting Wilkinson, 545
U.S. at 223).
The Prison Officials argue that when Shaw presented his theory of a procedural due
process violation to the district court, it revolved exclusively around his placement in
administrative segregation, and not around his transfer in the wake of a defective hearing,
so his theory of liability on appeal was waived. It is true that, in the pled claim itself, Shaw
seemed to emphasize administrative segregation as his purported liberty interest, and a
delayed hearing as the procedural defect. But the factual allegations in his complaint
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sufficiently presented the alternative liberty interest—invoking his fear of transfer—as well
as the procedural defect that he perceived to stem from the Prison Officials’ refusal to
review video evidence during his pre-transfer disciplinary hearing. See J.A. 64 (Shaw
pleading that he requested review of video evidence); J.A. 67 (Shaw pleading a Prison
Official’s refusal to review video evidence); J.A. 75 (Shaw pleading a defective hearing
and a conspiracy to unjustifiably place him at a higher-security prison). This Court reads
pro se pleadings to raise the strongest arguments that they suggest, and we consider whether
a pro se civil rights plaintiff is entitled to relief under any legal theory that his factual
allegations might plausibly convey. See Martin II, 977 F.3d at 298; Slade, 407 F.3d at 248.
Thus, Shaw plausibly alleged a colorable violation of his procedural due process rights.
We acknowledge that the leniency with which we treat pro se litigants’ pleadings in
the civil rights context may marginally increase burdens on defendants—necessarily
requiring their thoughtful consideration of all factual allegations, and not just expressly
pled claims. But context demands this searching treatment, for its absence risks exposing
indigent, incarcerated persons to injustices that we cannot condone.
Notably, the Prison Officials argue that qualified immunity bars Shaw’s procedural
due process claim. The district court did not reach this question, and we decline to usurp
that court’s function as the body of first review. See Robinson v. Equifax Info. Servs., LLC,
560 F.3d 235, 242 (4th Cir. 2009) (“Absent exceptional circumstances, . . . we do not
consider issues raised for the first time on appeal.”) (quoting Volvo Const. Equip. N. Am.,
Inc. v. CLM Equip. Co., 386 F.3d 581, 603 (4th Cir. 2004)). Thus, we do not now decide
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whether the procedural right to potentially exculpatory video evidence was clearly
established at the time of Shaw’s disciplinary hearing.
III.
A.
This Court reviews a district court’s pre-discovery grant of summary judgment for
abuse of discretion. Pledger v. Lynch, 5 F.4th 511, 524 (4th Cir. 2021) (citing Harrods
Ltd. v. Sixty Internet Domain Names, 302 F.3d 214, 244 (4th Cir. 2002)). Generally,
summary judgment must be “refused where the nonmoving party has not had the
opportunity to discover information that is essential to his opposition.” Harrods, 302 F.3d
at 244 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 n.5 (1986)). But a
nonmoving party “cannot complain that summary judgment was granted without discovery
unless that party . . . attempt[ed] to oppose the motion on the grounds that more time was
needed for discovery.” 1 Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 961 (4th
Cir. 1996) (citing Nguyen v. CNA Corp., 44 F.3d 234, 242 (4th Cir. 1995)).
A nonmovant presents such opposition in the form of a Rule 56(d) affidavit, stating
that he “cannot present facts essential to [his] opposition.” Fed. R. Civ. P. 56(d). Although
this Court places great weight on the requirement of a Rule 56(d) affidavit, see Harrods,
302 F.3d at 244, even in the affidavit’s absence, a district court abuses its discretion by
1
This is particularly so when a nonmovant properly received a Roseboro notice—a
necessity where a pro se nonmovant is concerned—explaining the requirements of the
summary judgment standard and the nonmovant’s rights or responsibilities with respect to
the pending motion. See Roseboro v. Garrison, 528 F.2d 309, 310 (4th Cir. 1975) (per
curiam).
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granting summary judgment when it otherwise has “fair notice of . . . potential dispute[s]
as to the sufficiency of the summary judgment record.” Pledger, 5 F.4th at 526 (citing
Harrods, 302 F.3d at 244–45). Such premature summary judgment is particularly
disfavored in the context of pro se litigation, and when “facts bearing on the subjective
knowledge” of defendants “are exclusively in the control of the opposing party.” Id.(simplified).
If we determine that a district court did not abuse its discretion in considering
summary judgment pre-discovery, we proceed to review the district court’s grant of
summary judgment de novo, applying the same standards as the district court. Calderon
v. GEICO Gen. Ins. Co., 809 F.3d 111, 120 (4th Cir. 2015) (citing Providence Square
Assocs., LLC v. G.D.F., Inc., 211 F.3d 846, 850 (4th Cir. 2000)). Under the federal rules,
summary judgment is appropriate “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.” Wai Man Tom v. Hosp. Ventures LLC, 980
F.3d 1027, 1037 (4th Cir. 2020) (quoting Anderson, 477 U.S. at 248). “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. (citation omitted). The Court must construe all facts and
reasonable inferences in the light most favorable to the nonmoving party. Ballengee v.
CBS Broad., Inc., 968 F.3d 344, 349 (4th Cir. 2020) (citing News & Observer Publ’g Co.
v. Raleigh-Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010)).
The moving party bears the “initial responsibility” of showing that there is no
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genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the
moving party meets that threshold burden, the nonmoving party must then go beyond the
pleadings and affidavits and show that there are “specific facts showing that there is a
genuine issue for trial.” Id. at 324 (simplified). Under this standard, “[t]he mere existence
of a scintilla of evidence” is insufficient to withstand an adequately supported summary
judgment motion. Anderson, 477 U.S. at 252. Similarly, “conclusory allegations or
denials, without more, are insufficient to preclude granting [a] summary judgment motion.”
Wai Man Tom, 980 F.3d at 1037 (citing Strickler v. Waters, 989 F.2d 1375, 1383 (4th Cir.
1993)).
B.
The district court abused its discretion by granting summary judgment pre-
discovery. Shaw properly received a Roseboro notice, explaining his rights to file
competing affidavits and other evidence in response to the Prison Officials’ pre-discovery
summary judgment motion. Shaw failed to respond with such evidentiary filings—or with
a Rule 56(d) affidavit. But the district court was on fair notice of potential disputes as to
the sufficiency of the summary judgment record. See Pledger, 5 F.4th at 526. Much of
the evidence that Shaw needs in this matter to combat a motion for summary judgment
either bears on the Prison Officials’ subjective knowledge or is in their exclusive control.
In such situations, premature summary judgment is particularly disfavored. See id.
Furthermore, Shaw expressed a desire to investigate the Prison Officials’ evidence,
impliedly seeking discovery. See, e.g., J.A. 206 (“[A]fter investigating the defendants’
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evidence, this court will find that the defendants were aware that they were subjecting me
to an invalid disciplinary hearing . . . .”).
Finally, and perhaps most importantly, it defies logic and common sense that
summary judgment was appropriate when the video evidence—core to Shaw’s theory of
vindication for the underlying disciplinary offense—had yet to surface. This evidence was
in the Prison Officials’ exclusive control. Moreover, it would likely bear profound
consequences on the claims in this dispute, depending on its depictions. The record is
replete with Shaw’s requests that prison officials produce and review the video evidence.
The fact of the Prison officials’ failure to disclose the video is deeply concerning, and
independently bespeaks the insufficiency of the summary judgment record. On this basis
alone, the district court abused its discretion.
But even if the district court did not abuse its discretion by prematurely granting
summary judgment, it erred in its merits analysis. The district court found—and the Prison
Officials do not dispute on appeal—that Shaw engaged in protected activity when filing
various complaints and sending various letters in August 2017. The district court likewise
found—and the Prison Officials do not dispute—that the Prison Officials took adverse
action against Shaw. But the district court granted summary judgment in the Prison
Officials’ favor because “the undisputed factual record demonstrates that there was no
causal connection between [Shaw’s] alleged First Amendment activity and [the Prison
Officials’] alleged retaliatory conduct.” Shaw v. Foreman, 1:18cv1286 (CMH/IDD), 2020
WL 4018933, at *1 (E.D. Va. July 16, 2020).
The court first explained that no causal connection could exist between Shaw’s
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protected activity and the delayed disciplinary hearing because the delays began before
Shaw even engaged in protected activity. It further reasoned that mere temporal proximity
between his protected activity and the allegedly defective disciplinary hearing is “simply
too slender a reed on which to rest a Section 1983 retaliation claim.” Id. at *6 (quoting
Wagner v. Wheeler, 13 F.3d 86, 91 (4th Cir. 1993)). Although Shaw contended that the
Prison Officials were opening outgoing mail, thus proving their knowledge of his protected
activity and supporting a finding of causation, the district court concluded that Shaw
substantiated this theory with little to no evidence. The district court further concluded
that, even if Shaw presented evidence that the Prison Officials were opening his mail—and
thus that they came to know the contents of his letters—he still offered no evidence that
such knowledge caused his allegedly unfair hearing.
“The First Amendment protects the right to petition the Government for a redress
of grievances, and the Supreme Court has recognized that prisoners retain this
constitutional right while they are incarcerated.” Martin I, 858 F.3d at 249 (simplified).
To state a colorable First Amendment retaliation claim, “a plaintiff must allege that (1) he
engaged in protected First Amendment activity, (2) the defendant[s] 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.” Id. (simplified).
To demonstrate a causal relationship between protected activity and the defendants’
conduct, this Court applies the burden-shifting framework of the same-decision test.
Martin II, 977 F.3d at 299. That test allocates a prima facie burden to the plaintiff to show
that his protected activity was “a substantial or motivating factor” in the defendants’ action.
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Id. at 301. The burden then shifts to the defendants to prove by a preponderance of the
evidence that they would have taken the same action in the absence of the plaintiff’s
protected activity. Id. at 299–300. For a plaintiff to meet his prima facie burden of
causation, he must show “(1) that the defendant[s were] aware of [his] engaging in
protected activity” and (2) “some degree of temporal proximity to suggest a causal
connection.” Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 501
(4th Cir. 2005) (simplified).
Here, with respect to knowledge, Shaw’s evidence is concededly convoluted and
slightly tenuous. Nevertheless, when drawing all reasonable inferences in his favor, the
record suggests that the Prison Officials knew of his protected activity. In a letter dated
August 15, 2017, Shaw wrote that “staff here at Sussex I [are] opening all the mail that
simply has ‘Offender Discipline Unit’” listed as the address, thus implying that the Prison
Officials were aware of Shaw’s attempts to grieve to Richmond officials. J.A. 84.
Furthermore, at least one of the Prison Officials received one of Shaw’s informal-complaint
filings asking them to review the video footage pre-hearing. See J.A. 81 (informal
complaint received by Murphy on August 7). Finally, after Shaw’s allegedly defective
hearing, but before the Prison Officials transferred him to Red Onion, Shaw filed an
informal complaint—seen by at least one of the Prison Officials—explaining that he had
“written Richmond already,” referring to his August 9 letter. J.A. 30. Thus, a genuine
dispute of fact exists as to whether one or more of the Prison Officials knew of his protected
conduct pre-hearing or before his transfer.
Regarding temporal proximity, the district court was correct that a causal link
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between Shaw’s protected activity and allegedly retaliatory hearing delays would be nigh
impossible to prove, given that hearing delays had already begun before Shaw engaged in
protected activity. However, Shaw also pled that the defective hearing itself amounted to
adverse action, as did his subsequent transfer to Red Onion. The hearing and transfer
occurred after his protected activities, even if delays began prior. Furthermore, the hearing
and transfer occurred in extremely close temporal proximity to his protected activity. See
Gregg-El v. Doe, 746 F. App’x 274, 275 (4th Cir. 2019) (per curiam) (“[T]emporal
proximity . . . may support an inference of causation.” (citing Foster v. Univ. of Md.-E.
Shore, 787 F.3d 243, 253 (4th Cir. 2015)). Shaw’s protected activity spanned at least from
August 2 to August 10, his hearing took place on August 17, and the Prison Officials made
their transfer decision around August 23.
Finally, we note that the Prison Officials’ failure to provide the disputed video
evidence is profoundly powerful circumstantial evidence that perhaps they did retaliate.
Under Martin’s burden-shifting framework, the simplest way that the Prison Officials can
prove that they would have taken the same adverse actions in the absence of Shaw’s
protected activity would be to provide video evidence that Shaw did, indeed, subject the
female correctional officer to the lewd behavior that underpinned the disciplinary-hearing
verdict and the transfer decision. The Prison Officials’ failure to fortify themselves with
such a simple and formidable defense to Shaw’s allegations is highly suspect. A reasonable
jury could certainly perceive the Prison Officials’ reticence in producing the video as
evincing a retaliatory motive.
Consequently, viewing the evidence and reasonable inferences in a light most
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favorable to Shaw, a reasonable jury could conclude that the Prison Officials retaliated.
Notably, the merits defects perceived by the district court could have resolved with more
certainty—one way or another—by permitting discovery. Following this Court’s remand,
Shaw’s First Amendment retaliation claim should be considered anew by the district court
post-discovery if either party newly moves for summary judgment. Although we perceive
the above defects in the district court’s initial decision, discovery may fundamentally alter
the meritoriousness of the parties’ respective positions. Thus, we do not foreclose de novo
consideration of this claim at summary judgment by the court below.
IV.
Shaw plausibly alleged a violation of his procedural due process rights such that
dismissal at the pleading stage was inappropriate. Pre-discovery summary judgment on
his First Amendment retaliation claim was likewise inappropriate. Thus, we reverse and
remand for proceedings consistent with this opinion—including, but not limited to,
discovery on both claims.
When “further factual development would be appropriate” on remand, this Court
has previously recommended that a district court “consider appointing counsel to assist in
litigating the case, . . . consistent with local rules and procedures.” Pledger, 5 F.4th at 527
n.6 (citing Brooks v. Johnson, 924 F.3d 104, 122 n.9 (4th Cir. 2019)). Here, both of Shaw’s
claims will require further factual development on remand so that they may be properly
considered at the summary judgment stage and, if necessary, proceed to trial. Thus, we
recommend that the district court appoint counsel to Shaw.
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REVERSED AND REMANDED
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