Wayne Savoy v. Frank Bishop , 706 F. App'x 786 ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-6096
WAYNE LEO SAVOY,
Plaintiff - Appellant,
v.
WARDEN FRANK B. BISHOP; JEFF NINES; LIEUTENANT J. MCFARLAND;
SERGEANT JOHN SHAVER; COII B. MCKENZIE,
Defendants - Appellees.
Appeal from the United States District Court for the District of Maryland, at Baltimore.
George L. Russell, III, District Judge. (1:14-cv-01853-GLR)
Submitted: August 1, 2017 Decided: August 28, 2017
Before SHEDD, THACKER, and HARRIS, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Chad I. Golder, Sarah G. Boyce, MUNGER, TOLLES & OLSON LLP, Washington,
D.C., for Appellant. Brian E. Frosh, Attorney General, Stephanie Lane-Weber, Assistant
Attorney General, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND,
Baltimore, Maryland, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Wayne Savoy (“Appellant”), a wheelchair-bound inmate at the Western
Correctional Institution in Cumberland, Maryland, brought suit against a variety of prison
officials (“Appellees”). He claimed Appellees retaliated against him for filing prison
grievances alleging violations of 42 U.S.C. § 1983, and Appellees placed a microwave in
the recreation area too high above the floor in violation of the Americans with
Disabilities Act (“ADA”). The district court granted Appellees summary judgment
concluding that filing a prison grievance was not a protected activity for the purpose of
§ 1983 and that the microwave had been placed at an appropriate height.
Since the district court’s decision, we have clarified our § 1983 jurisprudence and
explicitly stated that filing a prison grievance is constitutionally protected activity.
Therefore, because the district court’s decision rests on a flawed legal conclusion and
because no other grounds exist to affirm, we must vacate. As to the ADA claim, we
conclude that the district court did not properly apply the summary judgment standard.
Based on the appropriate standard, there is a genuine dispute of material fact. We
therefore vacate that part of the district court’s decision and remand the case.
I.
A.
On May 29, 2013, Appellant filed an Administrative Remedy Procedure (“ARP”)
Grievance against Appellees. He alleged that Appellees denied disabled inmates the
opportunity to work in the highest paid jobs in the prison in violation of the ADA.
2
Then, on June 12, 2013, Appellant filed a series of ARPs alleging that prison
officials were harassing and retaliating against him for filing his initial ARP. He alleged
the retaliation included improper reprimands for his work, threatening to change his
housing assignment, and informing other prisoners about his ARP to intimidate him.
Specifically, on July 7, 2013, Appellant was transferred from Housing Unit #1 to
Housing Unit #2. As a result, he lost his job in the laundry facilities because it was tied
to his housing unit. Appellant filed an ARP alleging that he had been moved in
retaliation for filing ARPs.
On July 13, 2013, Appellant seriously burned his leg when he spilled a bowl of hot
water he was microwaving. Appellant filed another ARP claiming that the microwave
was placed at an inappropriate height for a wheelchair-bound person.
On June 9, 2014, Appellant filed suit against Appellees alleging they violated 42
U.S.C. § 1983 and the ADA, 42 U.S.C. § 12101 et seq. Appellees responded and filed a
motion to dismiss or in the alternative for summary judgment. The district court
construed the motion as a motion for summary judgment and granted Appellees summary
judgment. Specifically, the district court concluded that Appellant had failed to state a
colorable § 1983 claim because Appellant had “no constitutional right to participate in an
administrative remedy or other grievance process.” Savoy v. Bishop, 2015 WL 5165365,
at *4 (D. Md. Sept. 2, 2015). The district court examined Appellant’s complaint as it
related to the ADA and determined Appellees had not violated the ADA when they
refused to allow Appellant to participate in certain higher-paying prison jobs. See id. at
5. Appellant does not appeal this aspect of the ruling. Based on the record below, it is
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not clear that Appellant’s complaint alleged Appellees’ refusal to allow him to participate
in these work programs violated the ADA. See J.A. at 10; 1 Pl.’s Mem. Resp. Mot.
Dismiss or Summ. J. at 2 (“The Defendants base their arguments on plaintiff’s request to
participate in the Vet Dog Program, which is not true. Plaintiff knew that he was not
eligible for the Vet Dog Program.”).
In a cryptic footnote, the district court acknowledged Appellant also claimed
Appellees violated the ADA by placing the microwave at an inaccessible height, but the
district court nevertheless granted Appellees summary judgment because they “affirm[ed]
. . . that the depth and height of the microwave table satisfie[d] the ADA standards for
design.” Id. at 5 n.7.
This timely appeal followed.
II.
We review a district court’s grant of summary judgment de novo. See Dreher v.
Experian Info. Sols. Inc., 856 F.3d 337, 343 (4th Cir. 2017). Summary judgment is
appropriate only when, viewing the facts in the light most favorable to the nonmoving
party, “there is no genuine dispute as to any material facts and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). A grant of summary judgment can
be affirmed on any ground in the record “including theories not relied upon . . . by the
district court.” Scott v. United States, 328 F.3d 132, 137 (4th Cir. 2003).
1
Citations to the “J.A.” refer to the Joint Appendix.
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III.
A.
To state a claim of retaliation in violation of § 1983, a plaintiff must show (1) he
engaged in protected First Amendment activity, (2) the defendants took action that
adversely affected plaintiff, and (3) a causal relationship between the protected activity
and defendant’s conduct. See Martin v. Duffy, 858 F.3d 239, 249 (4th Cir. 2017). In this
case, the district court concluded that filing prison grievances was not a protected First
Amendment activity. As a result, the district court did not address whether Appellees’
actions adversely affected Appellant or whether there was a causal relationship between
Appellant’s filing prison grievances and his transfer to a different housing unit and job
loss.
While this appeal was pending, we decided Booker v. South Carolina Department
of Corrections, where we held prison officials violate a prisoner’s clearly established
rights when they retaliate against him for filing a grievance. See 855 F.3d 533, 545 (4th
Cir. 2017). Appellees acknowledge that Appellant “has a First Amendment right to be
free from retaliation for filing a grievance.” Appellees’ Br. 9. 2 Nevertheless, Appellees
argue that we should affirm the district court on alternative grounds, that is, they argue,
even if Appellant was engaged in a protected activity, he cannot show Appellees’ actions
adversely affected him or a causal relationship between the protected activity and any
alleged adverse action. However, both these arguments would require us to act as a court
2
Indeed, Appellees never argued that Appellant lacked a constitutionally protected
right to file prison grievances.
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of first impression making findings and addressing issues that the district court did not
reach. But, on the record before us, genuine disputes of material fact preclude the grant
of summary judgment, and it is not our role to resolve these disputes in the first instance.
For an action to adversely affect a plaintiff’s First Amendment rights, the
retaliatory acts must be likely to 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) (quoting Washington v. Cnty. of Rockland, 373 F.3d
310, 320 (2d Cir. 2004) (Sotomayor, J.)). Here, the district court did not make any
findings about the nature of Appellees’ act. The district court did not compare
Appellant’s prior housing assignment to his current housing assignment and determine
the impact of the change. The district court did not inquire into whether Appellant has a
new job and, if so, whether the current job is worse than the previous job. Without this
information, we cannot discern whether Appellees’ actions would deter an ordinary
person from exercising his First Amendment rights.
In addition, a plaintiff must show that the protected activity was the “‘but for’
cause of the adverse action alleged.” Ridpath v. Bd. of Governors Marshall Univ., 447
F.3d 292, 318 (4th Cir. 2006). Courts can infer causation when the adverse action occurs
shortly after a plaintiff engaged in a protected activity. See Foster v. Univ. of Maryland-
E. Shore, 787 F.3d 243, 253 (4th Cir. 2015). 3 But, to refute such evidence, defendants
can offer a legitimate and permissible reason for their actions. See Guessous v. Fairview
3
The analysis for causation pursuant to § 1983 is the same as it is for Title VII.
See Causey v. Balog, 162 F.3d 795, 804 (4th Cir. 1998).
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Prop. Invs., LLC, 828 F.3d 208, 217 (4th Cir. 2016). However, even after defendants
have offered a legitimate reason, a plaintiff can still prevail on his claim if the evidence
as a whole demonstrates that the proffered permissible reason is not the actual reason but
merely a pretext. See Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 285
(4th Cir. 2004) (en banc).
Here, Appellees changed Appellant’s housing assignment causing him to lose his
work assignment shortly after Appellant filed his prison grievances. Appellees have
responded that he was one of six inmates transferred at that time in order to create room
for inmates involved in a program for which Appellant was ineligible because he had a
previous conviction for a sex offense and the program was not open to inmates who had
been convicted of sex offenses.
The district court did not examine whether this alleged reason was the true
motivation or mere pretext. For example, the district court did not determine how many
other inmates met the purported criteria for the transfer and were not transferred. Nor did
the district court determine whether the other inmates transferred had filed grievances. If
other inmates met Appellees’ stated criteria but were not transferred, then it would tend
to show Appellees’ reason was a pretext. Likewise, if only inmates who filed grievances
were transferred, it would tend to show Appellees’ reason was a pretext. Without
additional information, we cannot conclude as a matter of law that Appellees’ stated
reason for moving Appellant was its actual reason for moving Appellant. Therefore,
summary judgment is inappropriate.
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B.
Further, Appellant argues that the district court erred in granting summary
judgment on the ADA claim as it relates to the placement of the microwave. Summary
judgment is only appropriate when the evidence is “so one-sided that one party must
prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).
When a “genuine dispute as to any material fact” exists, summary judgment is
inappropriate. See Fed. R. Civ. P. 56(a). A “genuine dispute as to any material fact”
exists when reasonable minds could differ as to the result of a disputed issue and that
issue could affect the outcome of the case. Id.; see Scott v. Harris, 550 U.S. 372, 380
(2007).
Here, Appellees’ liability pursuant to the ADA depends on whether they placed
the microwave at a reasonable height above the floor. See Laird v. Redwood Trust LLC,
392 F.3d 661, 663 (4th Cir. 2004). Therefore, whether the microwave was placed at a
reasonable height constitutes a material fact. See Anderson, 477 U.S. at 248.
After investigating Appellant’s ARP, Appellees determined that the microwave
was placed 40 inches above the ground, and Appellant does not dispute this. However,
Appellant disputes whether placing a microwave 40 inches above the ground was
reasonable. Because reasonable people could disagree whether placing the microwave
this high was reasonable, this is a genuine dispute. See Scott, 550 U.S. at 380. Appellees
argue that the Department of Justice 2010 ADA Standards for Accessible Design
(hereinafter “ADA Standards”) control the issue and that the microwave was placed at
the correct height pursuant to ADA Standards § 308.2.1 which states, “Where a forward
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reach is unobstructed, the high forward reach shall be 48 inches (1220 mm) maximum
and the low forward reach shall be 15 inches (380 mm) minimum above the finish floor
or ground.”
However, Appellant argues Appellees rely on the wrong section of the ADA
Standards because the introduction to § 308 states the reach ranges are for “building
elements such as coat hooks, lockers, or operable parts.” Instead, Appellant points to
ADA Standards § 902.3 which provides, “The tops of dining surfaces and work surfaces
shall be 28 inches (710 mm) minimum and 34 inches (865 mm) maximum above the
finish floor or ground.” The introduction to § 902 explains that this section applies to
“[d]ining surfaces and work surfaces” such as “bars, tables, lunch counters, and booths”
and “writing surfaces, study carrels, student laboratory stations . . . .” ADA Standards
§ 902.1. Appellant also argues that Appellees’ reading of the ADA Standards is absurd
because it would require a wheelchair-bound person to carry scalding hot items above
their head.
In short, the above debate illustrates that a genuine dispute of material facts exists
as to the appropriate height of the microwave, and, therefore, neither side is entitled to
summary judgment on this issue.
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IV.
For the foregoing reasons, we vacate the district court’s judgement as it relates to
Appellant’s § 1983 claim and as it relates to the ADA claim regarding the placement of
the microwave. We remand for further proceedings to address the issues identified above
and for an ultimate determination of liability.
VACATED AND REMANDED
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