Cornell Daye v. Jim Rubenstein

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-6938
CORNELL F. DAYE,
Plaintiff – Appellant,
v.
JIM RUBENSTEIN, Commissioner Department of Corrections
(Under and up to the limits of the liability insurance
coverage); CHARLENE SOTAK, Grievance Coordinator Department
of Corrections (Under and up to the limits of the State’s
liability insurance coverage); THOMAS MCBRIDE, Ex-Warden
Mount Olive Correctional Complex (Individually and
Officially or Alternatively under and up to the limits of
the State’s liability insurance coverage); DENVER RUSSELL,
CO. 1 Mount Olive Correctional Complex (Individually and
Officially or Alternatively under and up to the limits of
the State’s liability insurance coverage),
Defendants - Appellees.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. Joseph R. Goodwin,
Chief District Judge. (2:09-cv-00909-JRG)
Submitted: February 10, 2011 Decided: March 17, 2011
Before WILKINSON and GREGORY, Circuit Judges, and HAMILTON,
Senior Circuit Judge.
Vacated and remanded in part; affirmed in part by unpublished
per curiam opinion.
Cornell F. Daye, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Cornell F. Daye appeals from the district court’s
order adopting the report and recommendation of the magistrate
judge and dismissing his 42 U.S.C. § 1983 (2006) complaint
pursuant to 28 U.S.C. § 1915A (2006). Daye sued prison
officials, challenging his treatment at his prison job. On
appeal, he raises two claims: (1) his complaint properly pled an
equal protection claim and (2) his state retaliatory discharge
claim should have been considered as a First Amendment
retaliation claim, based upon his allegations that he was fired
for complaining about racial discrimination. We vacate and
remand in part and affirm in part.
Pursuant to § 1915A, a district court shall dismiss a
case at any time if it determines that the action is frivolous
or malicious, fails to state a claim upon which relief may be
granted, or seeks monetary relief against a defendant who is
immune from suit. 28 U.S.C. § 1915A(b). Allegations in a
complaint are to be liberally construed, and a court should not
dismiss an action for failure to state a 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.” De’Lonta v. Angelone, 330
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F.3d 630, 633 (4th Cir. 2003). Pro se filings “however
unskillfully pleaded, must be liberally construed.” Noble v.
Barnett, 24 F.3d 582, 587 n.6 (4th Cir. 1994). We review de
novo a district court’s dismissal for failure to state a claim
pursuant to § 1915A. Slade v. Hampton Rds. Reg’l Jail, 407 F.3d
243, 248 (4th Cir. 2005).
To succeed on an equal protection claim, a prisoner
must first show that he was treated differently from others who
were similarly situated and that the unequal treatment resulted
from intentional or purposeful discrimination. Once he makes
this showing, the prisoner must allege facts that, if “true,
would demonstrate that the disparate treatment lacks
justification under the requisite level of scrutiny.” Veney v.
Wyche, 293 F.3d 726, 731 (4th Cir. 2002). Racial discrimination
in prisoner job assignments states a violation of the Equal
Protection Clause. See Davis v. Passman, 442 U.S. 228 (1979)
(finding violation of Equal Protection Clause in employment
context); Henry v. Van Cleve, 469 F.2d 687 (5th Cir. 1972)
(finding equal protection claim where prisoner alleged racial
discrimination in application of visiting privileges).
Liberally construing Daye’s complaint, we conclude
that his allegations are sufficient to survive the initial
review under § 1915A. See De’Lonta, 330 F.3d at 633. Daye
asserted that black inmates were ordered from their assigned
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tasks and made to perform more degrading tasks, while white
inmates were allowed to take over the originally-assigned tasks.
Daye asserted that these decisions were made on the basis of
race with the intent to humiliate and embarrass the black
inmates. While Daye’s complaint may be inartfully pled, it
appears without question that he could prove a set of facts that
would entitle him to relief. Specifically, if Daye could prove
that the black inmates and the white inmates were similarly
situated; that the black inmates were routinely assigned less
desirable tasks while white inmates received preferred tasks;
and that these decisions were made on the basis of race, he
would have shown a violation of the Equal Protection Clause.
Accordingly, the district court erred in dismissing Daye’s equal
protection claim.
Daye next asserts that the district court should have
liberally construed his complaint to allege a claim of
retaliation. Specifically, he claims that prison officials
retaliated against him for his exercise of his “First Amendment
rights” in complaining to officials regarding his job placement
and the related alleged discrimination. For an inmate to state
a colorable claim of retaliation, the alleged retaliatory action
must have been taken with regard to the exercise of some
constitutionally protected right, or the retaliatory action
itself must violate such a right. Adams v. Rice, 40 F.3d 72, 75
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(4th Cir. 1994). Furthermore, in a retaliation action alleging
First Amendment violations, a plaintiff must show that the
conduct complained of adversely affected his constitutional
rights. ACLU v. Wicomico County, 999 F.2d 780, 785 (4th Cir.
1993). It is insufficient to show a defendant’s conduct caused
a mere inconvenience. Id. at n.6. Moreover, the plaintiff must
allege specific facts supporting the claim of retaliation; bare
assertions of retaliation do not establish a claim of
constitutional dimension. Adams, 40 F.3d at 74-75.
We find that, even if the district court should have
construed the complaint as raising a retaliation claim, any such
claim was without merit. First, prisoners do not have a
constitutional right of access to the grievance process. Id. at
75. Daye’s verbal complaints to prison officials were
essentially a grievance, and thus, contrary to Daye’s
assertions, his expression of dissatisfaction was not
constitutionally protected. Next, Daye failed to demonstrate
that the conduct of prison officials adversely affected his
constitutional rights. Daye proceeded to file written
grievances on the issue and then filed this lawsuit.
Accordingly, his access to courts has not been hindered or
chilled in any way. As such, Daye’s retaliation claim was
properly dismissed.
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Daye’s complaint also raised claims of Eighth
Amendment and state law violations, as well as conspiracy.
However, on appeal, Daye does not address any of these claims in
his informal brief. Therefore, consideration of any other
claims not discussed above is deemed waived. See 4th Cir. Local
R. 34(b) ("The Court will limit its review to the issues raised
in the informal brief.").
For the foregoing reasons, we vacate the district
court’s dismissal of Daye’s equal protection claim and remand
for further proceedings. We affirm the dismissal of the
remainder of Daye’s complaint. We dispense with oral argument
because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the
decisional process.
VACATED AND REMANDED IN PART;
AFFIRMED IN PART
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