Opinion
Civil Action 4:22-cv-1475-JD-TER
12-19-2023
JIMMY CAUSEY, Plaintiff, v. CHARLES WILLIAMS, MS. DAVIS, MS. CLOUD, MS. LIM, SUSAN DUFFY MS. LEE, DAVID BURZINSKI, COSTA KIMBRELL, JOHN PALMER, JOEL ANDERSON, and KAYLA SHERVEY, Defendants.
REPORT AND RECOMMENDATION
THOMAS E. ROGERS, III UNITED STATES MAGISTRATE JUDGE.
I. INTRODUCTION
Plaintiff, who is proceeding pro se, brings this action pursuant to 42 U.S.C. § 1983 alleging various violations of his constitutional rights. Plaintiff alleges that he has suffered (1) high cholesterol, digestive issues, and severe weight loss due to unhealthy foods and portion sizes, (2) depravations as a result of long term solitary confinement, (3) retaliation for a previous lawsuit, and (4) unhealthy conditions of confinement with no windows or beds. Presently before the court is Defendants' Motion for Summary Judgment (ECF No. 94). Because Plaintiff is proceeding pro se, he was advised pursuant to Roseboro v. Garrison, 528 F.3d 309 (4th Cir. 1975), that a failure to respond to Defendants' motion could result in the motion being granted and his claims dismissed. Plaintiff requested an extension of time to respond to Defendants' motion, which was granted, and the deadline to respond was extended to November 27, 2023. See Order (ECF No. 105). Plaintiff filed an untimely Response (ECF No. 111) on December 5, 2023. All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule 73.02(B)(2)(d), DSC. This report and recommendation is entered for review by the district judge.
II. FACTS
Plaintiff enumerates four claims in his Amended Complaint. In Claim # 1, he alleges that he is suffering from high cholesterol, digestive problems, and severe weight loss (thirty pounds) due to the extremely unhealthy foods being served at Perry Correctional Institution (Perry). He alleges that the only healthy proteins they receive are tuna two-to-three times a month, and chicken once a week. Otherwise, they receive mystery meat, bologna, and “wiennies,” which are high in fat, cholesterol, and sodium, and contain little protein. He alleges they do not serve any fruit and only serve one vegetable at lunch and dinner. He alleges that Defendant Davis is the head dietician at SCDC and responsible for creating the master menu. He also alleges that he receives spoiled milk 3-4 times a week and often receives no beverage. Plaintiff alleges that Deputy Warden Harouff once took a picture of the clumps of spoiled milk served to inmates. Plaintiff also complains that the portion sizes they receive are insufficient. On weekends, they only receive two meals a day instead of three. He asserts that he was prescribed Ensure on March 2, 2021, due to his extreme weight loss. Am. Compl. pp. 11-13 (ECF No. 12).
Ryshema Davis, SCDC Nutritionist, avers that all meals served to SCDC inmates are designed to provide the daily Recommended Dietary Allowances set forth in the Nutritional Standards promulgated by the Nutrition Board of the National Research Council at the National Academy of Sciences. Davis Aff. ¶¶ 2, 5 (ECF No. 94-7). Davis assists in creating menus that meet the dietary needs of every inmate at SCDC depending upon their particular needs. Davis Aff. ¶¶ 6-8. Defendants argue there is no evidence that the meals planned and provided to Plaintiff were nutritionally deficient or inadequate to comply with nationally recognized nutritional standards. Defendants also assert that Plaintiff has presented no evidence of spoiled milk. Deputy Warden Harouff denies taking a photograph of clumps of spoiled milk as claimed by Plaintiff. Harouff Aff. ¶ 16 (ECF No. 94-8). Further, SCDC Food Service Specialist Ella Lim provides in her interrogatory responses that milk is ordered on a weekly basis and if any milk is questionable it is discarded. The milk contains a date stamp as to when it was packaged and the milk typically lasts ten to fourteen days by which time it has been consumed. Lim Int. Resp. 14, 15 (ECF No. 94-9).
With respect to Plaintiff's allegations of weight-loss, his medical records indicate that on September 17, 2019, shortly after he arrived at Perry, Plaintiff weighed 160 pounds. As of July 21, 2022, Plaintiff weighed 180 pounds. At his lowest weight, he weighed 146 pounds. The records reveal that medical personnel noted weight loss issues prior to Plaintiff's arrival at Perry. The records also show weight fluctuations by Plaintiff during his time at Perry. The medical department at Perry prescribed Ensure to Plaintiff when his body mass index (BMI) reached levels to justify that his diet be supplemented with Ensure. The medical records also reflect that Plaintiff was taken off of Ensure when his BMI reached normal levels. Plaintiff's medical records establish that his body weight was being actively monitored and tracked by SCDC personnel. Pl. Med. Records (ECF No. 94-10).
In Claim # 2, Plaintiff alleges that he has been in lock-up since July of 2017 due to a “nonviolent escape.” He alleges that in the Perry Restricted Housing Unit (RHU) he receives recreation one-to-two times per month, TVs in the hallways with no audio, haircuts and shaves once every one and a half-to-two months, and one book per month, if they are lucky. He is not allowed to have pillows, pillow cases, combs, shampoo, or jackets. There are no mirrors or beds in the cells and they are forced to sleep on concrete slabs. They are exposed to insects and their windows are covered with sheet metal. These conditions of his confinement have caused him severe mental health issues. Am. Comp. pp. 14-15.
Deputy Warden Harouff explains in his affidavit that some of the conditions described by Plaintiff are a result of his placement in RHU as a result of his disciplinary history, two prior escapes, and known efforts to make additional escape plans. Harouff Aff. ¶¶ 4-5. Harouff also disputes some of Plaintiff's claims. He avers that Plaintiff has access to the physical law library and on the digital law library on his tablet. Harouff Aff. ¶ 7. He states that Plaintiff was afforded outside recreation time when weather permitted and when there was sufficient staff to monitor the RHU inmates outside. Harouff Aff. ¶ 8; Outdoor Exercise Log (Att. B to Harouff Aff.). Harouff also avers that the transmitters have now been installed in the televisions to allow audio to be played to an individual inmate's earbuds. Harouff Aff. ¶ 9. Harouff avers that SCDC policy allows inmates to have one Bible and two books in their cells, and Plaintiff currently has one Bible and one book. Harouff Aff. ¶ 10. He also attaches documentation showing the number of books that Plaintiff has checked out while at Perry. Book Request Forms (Att. C to Harouff Aff.). In addition, Plaintiff has access to reading materials on his tablet. Harouff Aff. ¶ 10. Harouff further avers that all RHU inmates, including Plaintiff, are prohibited from having certain items such as pillowcases, mirrors, combs, laundry hooks, and bed frames due to security reasons. Harouff Aff. ¶ 11. RHU inmates sleep on a mattress on top of a concrete pad. Harouff Aff. ¶ 11. Harouff states that RHU is regularly sprayed for bugs by an exterminator, that laundry is done twice a week, that a chaplain visits Perry on a weekly basis and Plaintiff has access to the chaplain upon request. Harouff Aff. ¶¶ 12-14. Harouff also avers that several procedures have been implemented in RHU due to security concerns: windows have been covered to prevent inmates from breaking them, inmates are provided haircuts by officers in lieu of providing them with razors, and inmates are provided with towels, wash cloths, and shampoo for showers but they are not kept in their cells. Harouff Aff. ¶ 15.
In Claim # 3, Plaintiff alleges that Defendants have retaliated against him for filing a previous action in May of 2020 alleging excessive force against several officers and the Deputy Warden at Perry. Defendants Burzinski, Kimbrell and Shervey search his room or “toss” it two-to-three days a week by throwing his belongings around, and have confiscated law books and legal documents. Other inmates are not subjected to this conduct. Further, prior to him filing the May 2020 action, Plaintiff was never placed in a “strip cell” or on Nutriloaf. Since that action, he has been put in strip cell three times and on Nutriloaf four times. Also, for eight years he never had any disciplinary charges, but has had twenty-two charges since arriving at Perry on September 27, 2019. Defendant Palmer was overheard stating that he would make sure Plaintiff had some type of disciplinary charge prior to his next classification review. Nine days prior to his next classification review, Defendant Burzinski confiscated an affidavit from Plaintiff's cell and he was charged with having contraband. Am. Compl. pp. 16-18.
Defendants argue that any disciplinary and/or classification actions taken against Plaintiff are a result of his actions and not in retaliation for Plaintiff's previous lawsuit. Classification documents indicated that the classification review board made its decisions based on Plaintiff's disciplinary history. Pl. Classification Documents (ECF No. 94-13). Likewise, SCDC responses to Plaintiff's kiosk requests demonstrate that his custody reduction is based on two major disciplinary convictions after a prior review and that Plaintiff's custody level was appropriate based on previous offenses. Pl. Inmate Requests and Responses (ECF No. 94-14).
In Claim # 4, Plaintiff alleges that he is being subjected to deplorable living conditions and deprived basic human necessities. Many of these allegations are the same as those alleged in Claim # 2-windows covered with sheet metal and steel bars, concrete slabs to sleep on, exposure to insects resulting in ant and spider bites, insufficient recreation, showers, haircuts and shaves, laundry, and no pillows, pillow cases, combs, shampoo, or jackets. He also alleges they are not given sufficient cleaning supplies for their cells and the Chaplin is not allowed to visit or pass out religious literature. Am. Compl. pp. 19-21.
As set forth above, Deputy Warden addresses these claims in his affidavit.
III. STANDARD OF REVIEW
Under Fed.R.Civ.P. 56, the moving party bears the burden of showing that summary judgment is proper. Summary judgment is proper if there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Summary judgment is proper if the non-moving party fails to establish an essential element of any cause of action upon which the non-moving party has the burden of proof. Id. Once the moving party has brought into question whether there is a genuine dispute for trial on a material element of the non-moving party's claims, the non-moving party bears the burden of coming forward with specific facts which show a genuine dispute for trial. Fed.R.Civ.P. 56(e); Matsushita Electrical Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986). The non-moving party must come forward with enough evidence, beyond a mere scintilla, upon which the fact finder could reasonably find for it. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The facts and inferences to be drawn therefrom must be viewed in the light most favorable to the non-moving party. Shealy v. Winston, 929 F.2d 1009, 1011 (4th Cir. 1991). However, the non-moving party may not rely on beliefs, conjecture, speculation, or conclusory allegations to defeat a motion for summary judgment. Barber v. Hosp. Corp. of Am., 977 F.2d 87475 (4th Cir. 1992). The evidence relied on must meet “the substantive evidentiary standard of proof that would apply at a trial on the merits.” Mitchell v. Data General Corp., 12 F.3d 1310, 1316 (4thCir. 1993).
To show that a genuine dispute of material fact exists, a party may not rest upon the mere allegations or denials of his pleadings. See Celotex, 477 U.S. at 324. Rather, the party must present evidence supporting his or her position by “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.” Fed.R.Civ.P. 56(c)(1)(A); see also Cray Communications, Inc. v. Novatel Computer Systems, Inc., 33 F.3d 390 (4th Cir. 1994); Orsi v. Kickwood, 999 F.2d 86 (4th Cir. 1993); Local Rules 7.04, 7.05, D.S.C.
IV. DISCUSSION
Plaintiff brings this action pursuant to 42 U.S.C. § 1983, arguing that Defendants violated his constitutional rights. 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, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144, n. 3, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979)). A legal 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, 119 S.Ct. 1624, 143 L.Ed.2d 882 (1999). To be successful on a claim under § 1983, a plaintiff must establish two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). The parties do not dispute that they were acting under color of state law in their individual capacities at all times relevant to this action.
A. Conditions of Confinement
Plaintiff's claims 1, 2, and 4 all amount to complaints regarding the conditions of Plaintiff's confinement at Perry. The Eighth Amendment protects prisoners from cruel and unusual living conditions. Rhodes v. Chapman, 452 U.S. 337, 347 (1981). “[T]he Constitution does not mandate comfortable prisons,” however, and conditions that are “restrictive and even harsh ... are part of the penalty that criminal offenders pay for their offenses against society.” Id. at 347-49. It is well established that “only the unnecessary and wanton infliction of pain implicates the Eighth Amendment.” Wilson v. Seiter, 501 U.S. 294, 297 (1991). To sustain a living conditions claim, a prisoner must show that (1) objectively, the deprivation was sufficiently serious, in that the challenged official acts caused the denial of “the minimal civilized measure of life's necessities”; and (2) subjectively, the defendant prison officials acted with “deliberate indifference to inmate health or safety.” Farmer v. Brennan, 511 U.S. 825, 834 (1994).
The objective component “‘requires a court to assess whether society considers the risk that the prisoner complains of to be so grave that it violates contemporary standards of decency to expose anyone unwillingly to such a risk.'” Raynor v. Pugh, 817 F.3d 123, 127 (4th Cir. 2016) (quoting Helling v. McKinney, 509 U.S. 25, 36 (1993)) (emphasis in original)). “Only an extreme deprivation, that is, a ‘serious or significant physical or emotional injury resulting from the challenged conditions,' or substantial risk thereof, will satisfy the objective component of an Eighth Amendment claim challenging the conditions of confinement.” De'Lonta v. Johnson, 708 F.3d 520, 525 (4th Cir. 2013) (quoting De'Lonta v. Angelone, 330 F.3d 630, 634 (4th Cir. 2003)); see also Scinto v. Stansberry, 841 F.3d 219, 225; Anderson, 877 F.3d at 543 (objective component requires that the deprivation be “sufficiently serious”).
The subjective component of the test requires that the government official “‘had a sufficiently culpable state of mind.'” Raynor, 817 F.3d at 127 (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)). “In conditions of confinement cases, the requisite state of mind is deliberate indifference.” Scinto, 841 F.3d at 226. For liability to attach under the Eighth Amendment, “‘the prison official must have had a ‘criminal-law mens rea.'” Anderson, 877 F.3d at 543 (quoting Farmer, 511 U.S. at 302-03). “For claims challenging conditions of confinement, this mens rea may be demonstrated by showing intentional conduct or criminally reckless conduct (as distinct from recklessness as defined in the civil law).” Anderson, 877 F.3d at 544. Thus, an inmate plaintiff may prevail only by showing that a prison official was “aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Id. (quoting Farmer, 511 U.S. at 837).
1) Food
Allegations of inadequate prison food service may be sufficient to state a cognizable claim under § 1983, as long as the deprivation is serious and the defendant is deliberately indifferent to the need. See King v. Lewis, 358 Fed.Appx. 459, 460 (4th Cir. 2009); Bolding v. Holshouser, 575 F.2d 461, 465 (4th Cir. 1978) (prisoner's allegation of failure to provide adequate sanitary food service facilities states a cognizable claim). “Failure to meet an inmate's basic nutritional needs is cruel and unusual punishment because the inmate relies on prison officials to provide food; if the officials fail to do so, the inmate's basic nutritional needs will not be met.” Graham v. Trinity Food Serv., No. 7:23CV00062, 2023 WL 5019536, at *1 (W.D. Va. Aug. 7, 2023) (citing Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981)). Thus, under some circumstances, inadequate food service can be sufficiently serious to satisfy the objective element of an Eighth Amendment claim, but it is not sufficient to say in conclusory fashion that the food given was nutritionally inadequate. Hoehn v. Fuller, No. 7:22cv195, 2022 WL 2345764 *2 (W.D. Va. Jun, 29, 2022). Occasional instances of spoiled food or foreign objects in food is insufficient to give rise to a constitutional claim. See, e.g., Bedell v. Angelone, No. 2:01cv780, 2003 WL 24054709, at *14 (E.D.Va. Oct.3, 2003), aff'd per curiam, 87 Fed.Appx. 323 (4th Cir.2004); (holding that being served rotten food is unpleasant and unfortunate but does not state a claim when no serious deprivation occurred); Lasure v. Doby, C/A No. 0:06-cv-1527-RBH-BM, 2007 WL 1377694, *5 (D.S.C. May 8, 2007) (unpublished) (noting that plaintiff was “being held in a[ ] jail facility, not a hotel”). Although Plaintiff describes the food he was served at Perry, he fails to show that this food was inadequate to meet his basic nutritional needs. Davis, the SCDC Nutritionist, avers that all meals served to SCDC inmates are designed to provide the daily Recommended Dietary Allowances set forth in the Nutritional Standards promulgated by the Nutrition Board of the National Research Council at the National Academy of Sciences. In addition, SCDC Food Service Specialist Ella Lim stated that milk is ordered on a weekly basis and if any milk is questionable it is discarded. The milk contains a date stamp as to when it was packaged and the milk typically lasts ten to fourteen days by which time it has been consumed. Even though medical records reveal that Plaintiff lost weight for a period of time while incarcerated, there is no evidence in the record addressing the cause for his weight loss, thus Plaintiff fails to show that his weight loss is attributable to SCDC serving nutritionally deficient or spoiled food. Further, the records show that Plaintiff was successfully treated for the weight loss with Ensure because he gained weight while taking it and was eventually removed from the Ensure once his BMI reached appropriate levels. Thus, Plaintiff fails to show that any Defendants were deliberately indifferent to his health or safety, and summary judgment is appropriate on his food claims.
2) Living Conditions
In claims #2 and #4, Plaintiff complains that he is forced to live in deplorable living conditions. His allegations include insufficient recreation time, no audio on the television, no reading materials, insufficient number of haircuts, lack of pillows, pillowcases, combs, shampoo, and jacket, removal of mirrors, laundry hooks, and beds, and sleeping on a six-inch pad on the floor and being exposed to bugs. Specifically, Plaintiff alleges that he is only allowed recreation one to two times per month. Harouff avers that staffing levels dictate how often high-risk inmates such as Plaintiff, are allowed outside recreation. The outdoor exercise log attached to Harouff's affidavit covers Plaintiff's outdoor recreation between March of 2019 and August of 2023. It indicates lengthy periods of time-often months at a time--where the notation “safety/security concerns” is listed next to outdoor exercise. Neither Harouff's affidavit nor the attached log address whether Plaintiff was allowed opportunities for indoor recreation, though Harouff states that Plaintiff left his cell at least three times a week for showers and medical appointments. To determine whether these restrictions amount to an Eighth Amendment violation, the Court must look at the totality of the circumstances, including the “overall duration of incarceration, the length of time for which prisoners are locked in their cells each day, and the practical opportunities for the institution to provide prisoners with increased exercise opportunities.” Mitchell v. Rice, 954 F.2d 187, 191 (4th Cir. 1992). In Rivera v. Mathena, 795 Fed.Appx. 169, 171, 176 (4th Cir. 2019), the Fourth Circuit found that the facts in the record were sufficient to survive summary judgment on an Eighth Amendment conditions of confinement claim where during two periods of time (each consisting of about three months), the plaintiff “went about eight weeks without a shower and approximately two months without any outdoor recreation. Most weeks during those periods, he received zero, one, or two opportunities each week to exercise.” Id. The Rivera court explained that restricting exercise to twice per week might not violate the Eighth Amendment “if confined to a relatively short period of maximum confinement,” but extended over a period of years and perhaps indefinitely, the outcome “may be quite different.” Id. at 174 (citations omitted); see Lyles v. Stirling, 844 Fed.Appx. 651, 654 (4th Cir. 2021) (finding a genuine issue of fact where plaintiff was denied out-of-cell exercise for more than ten months).
Other notations under “observation” include “yes,” “refused,” and “inclement weather.”
However, “a legitimate penological justification can support prolonged detention of an inmate in segregated or solitary confinement ... even though such conditions create an objective risk of serious emotional and psychological harm.” Porter v. Clarke, 923 F.3d 348, 362-63 (4th Cir. 2019). Defendants in the present case assert that Plaintiff's limited outdoor exercise time had a legitimate penological justification given Plaintiff's history of two successful escapes from other prisons within SCDC and his repeated threats to escape again. Courts have held that prior escapes or attempts to escape provide a legitimate penological justification for denying or limiting exercise outside the cell. See, e.g., Bass v. Perrin, 170 F.3d 1315 (11th Cir. 1999) (finding a legitimate penological justification for denying outdoor exercise where the inmates had previously “scaled a fence, commandeered a dump truck (by ejecting the driver at knifepoint), and drove through the perimeter fence in an attempt to escape” and noting “it would be hard to imagine a situation in which two persons had shown a greater threat to the safety and security of the prison”); Martin v. Tyson, 845 F.2d 1451, 1456 (7th Cir. 1988) (concluding that the limitation on his access to the outdoors was related to a legitimate prison concern where the inmate was facing criminal charges for a previous escape from jail). Because a penological reason exists for Plaintiff's at-times, limited outdoor exercise, summary judgment is appropriate on his conditions of confinement claim relating to exercise.
Plaintiff's other complaints regarding his living conditions likewise fail to survive summary judgment because none of them amount to the depravation of a basic human need nor can Plaintiff show that he suffered an injury as a result of these conditions. As stated above, his allegations include no audio on the television, no reading materials, insufficient number of haircuts, lack of pillows, pillowcases, combs, shampoo, and jacket, removal of mirrors, laundry hooks, and beds, and sleeping on a six-inch pad on the floor and being exposed to bugs. The conditions of confinement complained of by Plaintiff amount to nothing more than a “routine discomfort [that] is part of the penalty that criminal offenders pay for their offenses against society.” Strickler v. Waters, 989 F.2d 1375, 1380 (4th Cir. 1993(. The Eighth Amendment “does not mandate comfortable prisons.” Rhodes v. Chapman, 452 U.S. at 349, 101 S.Ct. at 2400. “To the extent ... conditions are restrictive and even harsh, they are part of the penalty that criminal offenders pay for their offenses against society.” Id. at 347, 101 S.Ct. 2392; Shakka v. Smith, 71 F.3d 162, 166 (4th Cir. 1995)(citing Hudson v. McMillian, 503 U.S. 1, 9, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992)); Lopez v. Robinson, 914 F.2d 486, 490 (4th Cir. 1990). Furthermore, Plaintiff fails to allege any injury resulting from the challenged condition. Strickler, 989 F.2d at 1381(an inmate “must produce evidence of a serious or significant physical or emotional injury resulting from the challenged conditions.”); see also White v. Gregory, 1 F.3d 267, 269 (4th Cir. 1993)(prisoner's Eighth Amendment claim should be dismissed if he fails to allege a serious physical or mental injury resulting from the conditions of confinement). Inmates are not “guest[s] in a hotel, and it should be expected that conditions in such a setting are often times less than ideal.” Daniels v. Benston, No. 5:13CT3286-FL, 2016 WL 270218, at *6 (E.D. N.C. Jan. 21, 2016) (citing Bell v. Wolfish, 441 U.S. 520, 537 (1979)). Plaintiff fails to present evidence of any physical or emotional injury he has suffered as a result of these conditions. Therefore, summary judgment is appropriate on the remainder of Plaintiff's conditions of confinement claims.
B. Retaliation
Plaintiff also alleges that he has been subjected to retaliation for filing a previous lawsuit in May of 2020 alleging excessive force against several officers and the Deputy Warden at Perry. An inmate has a clearly established First Amendment right to be free from retaliation for filing lawsuits. See Booker v. S.C. Dep't of Corrs., 855 F.3d 533, 540 (4th Cir. 2017); Thompson v. Commonwealth of Va., 878 F.3d 89, 110 (4th Cir. 2017). To establish a colorable First Amendment retaliation claim, a plaintiff must show that (1) he engaged in protected First Amendment activity, (2) the defendant took some action that adversely affected his First Amendment rights, and (3) there was a causal relationship between his protected activity and the defendant's conduct. Martin v. Duffy, 977 F.3d 294, 299 (4th Cir. 2020) (quotation marks and citation omitted). Retaliation claims brought by prisoners, however, are treated with skepticism because every act of discipline by a prison official is retaliatory in that it responds directly to prisoner misconduct. See Adams v. Rice, 40 F.3d 72, 74 (4th Cir. 1994). Bare or conclusory assertions of retaliation are insufficient to establish a retaliation claim. Id. at 74. Plaintiff alleges that Defendants Burzinski, Kimbrell and Shervey search his room or “toss” it two-to-three days a week by throwing his belongings around, and have confiscated law books and legal documents since he filed the previous action in May of 2020. He further alleges that Defendant Palmer was overheard stating that he would make sure Plaintiff had some type of disciplinary charge prior to his next classification review, and nine days prior to his next classification review he was charged with having contraband.
With respect to the causation element of a retaliation claim, a plaintiff “must allege a causal connection between [his] First Amendment activity and the alleged adverse action.” Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 501 (4th Cir. 2005). “In order to establish this causal connection, a plaintiff in a retaliation claim must show, at the very least, that the defendant was aware of [his] engaging in protected activity.” Id. (citing Dowe v. Total Action Against Poverty in Roanoke Valley, 145 F.3d 653, 657 (4th Cir. 1988)). Defendants Burzinski, Kimbrell and Shervey were not parties to the previous action, and Plaintiff has failed to show that they had knowledge of the previous action. Therefore, summary judgment is appropriate as to Plaintiff's retaliation claim against them. The only defendant in the present case who was also a defendant in the previous case is John Palmer. Thus, he is presumed to have knowledge of the previous case. “‘Knowledge alone, however, does not establish a causal connection' between the protected activity and the adverse action.” Id. (quoting Price v. Thompson, 380 F.3d 209, 213 (4th Cir. 2004)). The plaintiff must allege facts showing that his exercise of his constitutional right was a substantial factor motivating the retaliatory action. See, e.g., American Civil Liberties Union v. Wicomico County, 999 F.2d 780, 785 (4th Cir.1993) (citing Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 287 (1977)); Wagner v. Wheeler, 13 F.3d 86, 90-91 (4th Cir.1993). “Temporal proximity” between the inmate's protected activity and the allegedly retaliatory, official action “is simply too slender a reed on which to rest” the causation element of a § 1983 retaliation claim. Wagner, 13 F.3d at 91. Other than asserting that Palmer's actions occurred after Plaintiff filed the previous law suit, Plaintiff has presented no evidence that the lawsuit was a substantial factor in Palmer's actions. Accordingly, his retaliation claim fails against Palmer as well.
Plaintiff asserts that Palmer was overheard admitting that he would come up with some disciplinary charge for Plaintiff prior to his next classification hearing, and that nine days prior to his classification review on April 5, 2022, he was charged with having contraband. Plaintiff's previous action was filed on May 1, 2020, almost two years prior to Palmer's alleged comment.
V. CONCLUSION
For the reasons discussed above, it is recommended that Defendants' Motion for Summary Judgment (ECF No. 94) be granted and this case be dismissed in its entirety.