RICHARDSON-BEY v. SHELTON

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

LEROY RICHARDSON-BEY, )

)

Plaintiff, )

)

v. ) 1:23cv138

)

WARDEN M. SHELTON, )

)

Defendant. )

MEMORANDUM OPINION AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

This case comes before the undersigned United States

Magistrate Judge for a recommendation on “Defendant’s Motion for

Summary Judgment” (Docket Entry 42 (the “Motion”) at 1 (all-cap and

bold font omitted))1 filed by Melanie Shelton (the “Defendant” or

“Warden Shelton”). For the reasons that follow, the Court should

deny the Motion.

BACKGROUND

Alleging violations of his rights during his incarceration

with the North Carolina Department of Adult Corrections (the

“DAC”), Leroy Richardson-Bey (the “Plaintiff”) sued, inter alia,

Defendant, formerly the warden at Sanford Correctional Center (at

times, the “SCC”). (See generally Docket Entries 1, 8; see

also Text Order dated Feb. 1, 2024 (reflecting that “a Special

Deputy Attorney General for the State of North Carolina . . .

1 Docket Entry page citations utilize the CM/ECF footer’s

pagination.

notif[ied] the Court that [Warden] Shelton had ‘retired’”).)

Having reviewed Plaintiff’s pleadings pursuant to 28 U.S.C. § 1915A

(see generally Docket Entry 10) (the “Recommendation”), the Court

(per United States District Judge William L. Osteen, Jr.) allowed

Plaintiff to pursue his “individual capacity retaliation claim

against Defendant” (Docket Entry 14 at 1 (adopting Recommendation))

for allegedly transferring Plaintiff from SCC in connection with an

incident, about which Plaintiff complained to Defendant (see Docket

Entry 10 at 5), in which SCC “Sgt. Watson ordered Plaintiff to

remove all of his religious materials from the table [in the SCC I-

Dorm dayroom] where [Plaintiff] was praying and studying and stated

that if [Plaintiff] did not, [Sgt.] Watson would put them in a

garbage bag” (id.), a directive with which “Plaintiff complied”

(id.).

The parties subsequently engaged in discovery (see, e.g.,

Docket Entry 45-1, ¶ 17 (averring that Plaintiff “requested a copy

of the letters [he] sent to Warden Shelton in discovery”)), after

which Defendant “move[d] for summary judgment as to all claims

against her” (Docket Entry 42 at 1). In support of that request,

Defendant submitted a grievance that Plaintiff filed related to the

transfer and the official responses thereto. (See Docket Entry 43-

1; see also Docket Entry 45-1 at 6-12 (authenticating materials).)

Defendant also submitted an unsworn document entitled “Statement of

the Facts” (Docket Entry 43-2 at 2 (all-cap font omitted)) that

2

Plaintiff appears to have submitted to prison officials in or

before March 2022 (see id. at 5).?’ As relevant to the Motion

(see Docket Entry 43 at 2, 5 (citing document)), this document

states that, while “[Plaintiff] was practicing [Plaintiff’s] faith

in the I-dorm dayroom[,] Sgt[.] Watson ordered [Plaintiff] to

remove [Plaintiff’s] religious items from a table in the I-dorm

dayroom because [Sgt. Watson] said that [Plaintiff] was building a

shrine[. Plaintiff] obeyed [Sgt. Watson’s] orders.” (Docket Entry

43-2 at 2.) Finally, Defendant submitted a document purporting to

outline SCC’s “Standard Operating Procedures” (Docket Entry 43-3 at

2 (bold font omitted)) regarding “Religious Services” (id. (bold

font omitted)) as of March 2021 (see id. at 2-4).°

Plaintiff filed a response in opposition to the Motion (Docket

Entry 45) (the “Opposition”). To support his Opposition, Plaintiff

submitted a personal affidavit, to which he attached his grievance

and the associated responses, as well as apparent responses by

Defendant to certain requests for admission. (See Docket Entry 45-

2 Defendant did not authenticate this document. (See Docket

Entries 42 to 43-3.) However, Plaintiff does not dispute its

authenticity (see Docket Entry 45 at 11 (“In his grievance,

Plaintiff conveyed that ‘Sgt. Watson ordered [Plaintiff] to remove

[his] religious items because [Sgt. Watson] said that [Plaintiff]

was building a shrine.’” (quoting Docket Entry 43-2 at 1))), and

Plaintiff reiterates the pertinent information in his affidavit

(see Docket Entry 45-1, I7 6-11).

3 Defendant likewise failed to authenticate this document

(see Docket Entries 42 to 43-3), but, for the reasons discussed

herein, these policies do not affect the Motion’s resolution.

1 (the “Affidavit”) at 1-14.)4 Defendant filed no reply to the

Opposition. (See Docket Entries dated Apr. 15, 2025, to present

(lacking filings from Defendant).)

As relevant to the Motion, the Affidavit states:

[Plaintiff, a DAC inmate] was housed at Sanford

Correctional Center from 2018 to 2021. . . .

Now, and at the time of the events giving rise to

this [Affidavit, Plaintiff has been] a practicing Muslim.

While at Sanford Correctional Center, several inmates,

including [Plaintiff], had claimed their own day room

table within the I-dorm by using a specific table for an

extended period and keeping [their] personal belongings

on the table.

Although the day room tables were unassigned, the

unofficial seating arrangement among the inmates was

respected within the I-dorm.

On the day room table [that Plaintiff] had claimed,

[Plaintiff] kept Muslim religious books, notes from [his]

study of Muslim religious books, and pictures of

respected figures within [his] Muslim faith. During

[his] time at Sanford Correctional Center, from 2018 to

2021, [Plaintiff] daily prayed and studied Muslim

religious materials at [his] table in the I-dorm day room

without interference from prison staff. Part of

[Plaintiff’s] daily religious practice at [his] claimed

day room table included praying at the table five times

a day with [his] religious materials which included

reading Muslim religious books, taking notes from [his]

study of Muslim religious books, using [his] prayer rug,

and looking at pictures of respected figures within [his]

faith.

Prior to the incident on October 30, 2021,

[Plaintiff] engaged in this practice of daily prayer,

4 Plaintiff did not authenticate these responses. (Compare

Docket Entry 45-1 at 1-8 (lacking reference to Exhibit E), with id.

at 13-14 (bearing “Plaintiff’s Exhibit E” label (all-cap and bold

font omitted)).) As detailed herein, however, Plaintiff does not

need these admissions to survive summary judgment.

4

study, and meditation at [his] table with [his] religious

materials on a daily basis beginning a few months after

[his] arrival at Sanford Correctional Institute [sic] in

2018.

[Plaintiff] had finished prayer and gone to lunch in

the chow hall when Sergeant Watson approached [Plaintiff]

and told [Plaintiff that he] needed to remove [his]

religious materials from [his] table in the I-[d]orm day

room.

The religious materials [Sergeant Watson] ordered

[Plaintiff] to remove had been on [Plaintiff’s] table

throughout [Plaintiff’s] time at Sanford Correctional

Center, since a few months after [Plaintiff’s] arrival in

2018.

[Plaintiff] approached Sergeant Watson in his office

and explained that [Plaintiff] believed [Sergeant Watson]

was discriminating against [Plaintiff] because the

Christians had their religious materials on [their]

tables and others had art supplies on their tables, and

[Plaintiff] believed [Plaintiff] was being singled out

because [Plaintiff is] Muslim.

[Sergeant Watson] said that [Plaintiff’s] materials

were a “shrine” and that if [Plaintiff] did not remove

them [Sergeant Watson] would throw them in the garbage.

[Plaintiff] did not have a shrine in the I-dorm day

room. [Plaintiff] was simply sitting at the table in the

I-dorm day room with [his] Muslim religious materials,

studying and praying, as [Plaintiff] had done

consistently since [Plaintiff’s] arrival to Sanford

Correctional Center in 2018. [Plaintiff] disagree[s]

with Sergeant Watson’s characterization of [Plaintiff’s]

religious materials as a “shrine.” The word “shrine” is

not used by faith [sic] to describe the use of

[Plaintiff’s] space for religious prayer, study, and

meditation.

In response to Sergeant Watson’s order, [Plaintiff]

removed [his] religious materials from the day room table

and put them in [his] locker.

Caucasian inmates housed with [Plaintiff] in I-dorm

were practicing Christianity and also maintained

unofficial possession of their own day room tables and

5

used these tables to practice their religion in a manner

similar to [Plaintiff]. They were never ordered to

remove their religious materials from their day[ ]room

tables while in the I-dorm, nor were they threatened with

destruction of their religious materials.

Further, on Sundays, inmates in [Plaintiff’s] area

of I-dorm who practiced Christianity used the I-dorm day

room for religious purposes without interference from

prison staff. Specifically, inmates practicing

Christianity would push tables together to read their

Bible, study Christian religious materials, sing

Christian hymns, and engage in prayer together in the

I-dorm day room.

On November 7, 2021, [Plaintiff] wrote a letter to

Warden Shelton, Warden of Sanford Correctional Center, to

notify her of Sergeant Watson’s actions on October 30,

2021, specifically that Sergeant Watson[] ordered

[Plaintiff] to remove all of [his] religious materials

from the day room table and threatened [him] with the

destruction of [his] religious materials.

In the letter [Plaintiff] informed Warden Shelton

that [he] believed [Sergeant] Watson’s order to remove

[his] religious materials discriminated against [him] on

the basis of religio[n] and race. [Plaintiff] wrote to

her that this was an abuse of power and authority.

[Plaintiff] told her that [he] had been engaged in the

same practice with the same materials for many months

with no problem.

On November 14, 2021, [Plaintiff] wrote a second

letter to Warden Shelton in regard to Sergeant Watson’s

actions on October 30, 2021 and reiterating [Plaintiff’s]

concerns.

[Plaintiff] requested a copy of the letters [he]

sent to Warden Shelton in discovery and they were not

produced.

On November 17, 2021, three days after [Plaintiff’s]

second letter to Warden Shelton, Warden Shelton ordered

[Plaintiff’s] transfer from Sanford Correctional Center

to Richmond Correctional Institution[ (at times, the

“RCI”)].

6

On November 17, 2021, a [DAC] officer removed

[Plaintiff] from [his] work release assignment and

brought [him] back to Sanford Correctional Center to

prepare for the transfer.

At Sanford Correctional Center, [Plaintiff]

participated in the institution’s work release program.

However, following Warden Shelton ordering [Plaintiff’s]

transfer, [Plaintiff] was moved to Richmond Correctional

Institution, an institution that does not provide a work

release program. As a result of [his] transfer,

[Plaintiff] lost the ability to participate in work

release.

Before [he] was transferred from Sanford

Correctional Center, [Plaintiff] had begun the process

for the Mutual Agreement Parole Program (MAPP). Under

the MAPP agreement, work release is one factor considered

in reducing jail time and setting a parole date.

Losing the ability to participate in work release

significantly delayed [Plaintiff’s] MAPP agreement and

negatively impacted [his] parole by pushing [his]

potential parole date further into the future.

Further, [Plaintiff’s] inability to participate in

work release resulted in lost wages. [Plaintiff] was

earning $420 per month, and ha[s] lost those wages for

more than 36 months since losing work release November

17, 2021.

On December 2, 2021, [Plaintiff] filed a formal

grievance, Grievance No. 3930-2021-JEA-16371, against

Warden Shelton regarding [his] transfer from Sanford

Correctional Center to Morrison [sic] Correctional

Institution. See Plaintiff’s Exhibit A.[5]

5 Filed at “Richmond CI” (Docket Entry 45-1 at 9), the

grievance states: “Because I sought to practice [and] exercise my

religious faith[,] Warden Shelton of [SCC] ordered me to be

transfer[r]ed here[, w]hich is a violation of my First Amendment

religious rights of the U.S. Constitution.” (Id. (certain

capitalization altered).) To resolve his grievance, Plaintiff

asked for officials to “[p]lace [him] back on [his] work release

[j]ob.” (Id.)

7

In response to [Plaintiff’s] December 2 grievance,

Assistant Warden Parrish denied [Plaintiff’s] grievance,

stating in the Step One Unit response on January 4, 2022,

“[Plaintiff] FEELS THAT THE WARDEN IS DISCRIMINATING

AGAINST HIS RELIGION BECAUSE THEY WILL NOT ALLOW HIM TO

ERECT A “SHRINE” IN THE DAYROOM. THE WARDEN DOES NOT

ALLOW ANY FAITH TO USE THE DAY ROOM AS A MEANS TO DISPLAY

THEIR RELIGIOUS FAITHS. THEREFORE, IT HAS BEEN

DETERMINED THAT IN ORDER TO NOT UNDERMINE THE FACULTY

[sic] AUTHORITY [Plaintiff] SHOULD BE TRANSFERRED TO

ANOTHER FACILITY.” See Plaintiff’s Exhibit B.

[Plaintiff] was not “erecting a shrine” in the

I-dorm day room. [Plaintiff] was sitting at the same

table in the I-dorm day room with the same religious

items that had consistently been on the day room table

since a few months after [Plaintiff’s] arrival at Sanford

Correctional Center in 2018.

The second denial of Grievance No.

3930-2021-JEA-16371, [Plaintiff’s] formal grievance

against Warden Shelton regarding [Plaintiff’s] transfer

from Sanford Correctional Center, came on March 1st,

2022, by Gutierrez, Assistant Warden under [Warden]

Shelton at Sanford Correctional Center. In his Step Two

Institution Response on [sic] Gutierrez stated: “In

response to your grievance, you transferred as part of a

swap request from another facility. You met all criteria

for the swap and it was agreed upon by both facilities.

You spent two years at Sanford C[orrectional Center]

without issue however housing assignments are not

guaranteed and are based on institutional, regional, and

divisional needs.” Most notably, Gutierrez[’s] response

to [Plaintiff’s] grievance stated in [sic] that

[Plaintiff] had spent two years at Sanford C[orrectional

Center] without issue. See Plaintiff’s Exhibit C.

Based on the statements made in the Step One Unit

Response by Assistant Warden Parrish and the Step Two

Institution Response by Assistant Warden Gutierrez,

[Plaintiff’s] transfer from Sanford Correctional Center

to Richmond Correctional Institution was solely because

of the two letters [Plaintiff] sent to Warden Shelton

complaining about Sergeant Watson’s actions on October

30, 2021, and there is no other legitimate reason for

[Plaintiff’s] transfer besides [Plaintiff’s] complaints.

8

On March 2nd [sic], 2022, Grievance No.

3930-2021-JEA-16371, [Plaintiff’s] formal grievance

against Warden Shelton, was denied for the third time by

Kimberly D. Grande, Inmate Grievance Examiner for the

[DAC]. Grande reasoned that her review of the record

found no violation of applicable prison policy, nor any

evidence of misconduct by prison staff. Exhibit D.[6]

Between January and March of 2022, [Plaintiff’s]

formal grievance against Warden Shelton regarding [his]

transfer from Sanford Correctional Center to Morrison

[sic] Correctional Institution, Grievance No.

3930-2021-JEA-16371, was received by Assistant Warden

Parrish, Assistant Warden Gutierrez, and Inmate Grievance

Examiner Grande, and denied a total of three times, once

by Parrish, Gutierrez, and Grande.

[Plaintiff] was transferred and lost work release in

retaliation for complaining to Warden Shelton about the

denial of [Plaintiff’s] religious freedom and racial

discrimination.

(Docket Entry 45-1, ¶¶ 1-31 (internal paragraph numbering omitted)

(all-cap font and double quotation marks in original).)

DISCUSSION

I. Summary Judgment Standards

“The [C]ourt shall grant summary judgment 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 genuine dispute of material fact exists “if the

evidence is such that a reasonable jury could return a verdict for

the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248 (1986). The movant bears the burden of establishing the

6 This response bears a date of March 21, 2022. (See Docket

Entry 45-1 at 12 (bearing grievance received date of March 2,

2022).)

9

absence of such dispute. See Celotex Corp. v. Catrett, 477 U.S.

317, 323 (1986).

In analyzing a summary judgment motion, the Court “tak[es] the

evidence and all reasonable inferences drawn therefrom in the light

most favorable to the nonmoving party.” Henry v. Purnell, 652 F.3d

524, 531 (4th Cir. 2011) (en banc). In other words, the nonmoving

“party is entitled to have the credibility of his evidence as

forecast assumed, his version of all that is in dispute accepted,

[and] all internal conflicts in it resolved favorably to him.”

Miller v. Leathers, 913 F.2d 1085, 1087 (4th Cir. 1990) (en banc)

(internal quotation marks omitted) (brackets in original). If,

applying this standard, the Court “find[s] that a reasonable jury

could return a verdict for [the nonmoving party], then a genuine

factual dispute exists and summary Judgment is improper.” Evans v.

Technologies Applications & Serv. Co., 80 F.3d 954, 959 (Ath Cir.

1996).

Finally, factual allegations in a complaint or other court

filing constitute evidence for summary judgment purposes only if

sworn or otherwise made under penalty of perjury. See Reeves v.

Hubbard, No. 1:08cv721, 2011 WL 4499099, at *5 n.14 (M.D.N.C. Sept.

27, 2011), xrecommendation adopted, slip op. (M.D.N.C. Nov. 21,

2011); see also United States v. White, 366 F.3d 291, 300-01 (4th

Cir. 2004) (denying summary judgment where “[t]he Government’s

claimed entitlement to summary judgment rests largely on its

10

repeated contention in court submissions that it did not orally

agree to a conditional plea,” explaining that “an attorney’s

unsworn argument does not constitute evidence, and the Government

has offered no affidavit, deposition, sworn statement, or other

direct evidence that a Government agent did not make the oral

promise”); Rountree v. Fairfax Cnty. Sch. Bd., 933 F.2d 219, 223

(4th Cir. 1991) (“The arguments of counsel, absent any evidence

such as sworn affidavits accompanying objections to a motion for

summary judgment, fail to meet the evidentiary standard necessary

to create a genuine issue of material fact.”). As such, “the

unsworn statements in [a party’s] grievances and [summary judgment]

brief generally do not constitute admissible evidence.” Bowman v.

Johnson, No. 3:08cv449, 2011 WL 1167320, at *8 n.9 (E.D. Va. Mar.

24, 2011).

II. Analysis

As Defendant concedes, “[f]or an inmate to prove a First

Amendment retaliation claim, he must prove ‘(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.’”7 (Docket Entry 43 at 4 (quoting

7 This standard governs first-amendment retaliation claims

generally, not just for inmates. See, e.g., Constantine v. Rectors

& Visitors of George Mason Univ., 411 F.3d 474, 499 (4th Cir. 2005)

(outlining same test for law school student’s first-amendment

(continued...)

11

Martin v. Duffy, 858 F.3d 239, 249 (4th Cir. 2017)).) “That said”

(id.), Defendant maintains,

inmate claims of retaliation are treated with skepticism

because “[e]very act of discipline by prison officials is

by definition ‘retaliatory’ in the sense that it responds

to prisoner misconduct.” Cochran v. Morris, 73 F.3d

1310, 1317 (4th Cir. 1996); Adams v. Rice, 40 F.3d 72, 74

(4th Cir. 1994).

(Docket Entry 43 at 4-5 (brackets in original).) This contention

misses the mark.

In a recent decision reversing the grant of summary judgment

to a prison official on an inmate’s first-amendment retaliatory

transfer claim, the United States Court of Appeals for the Fourth

Circuit “note[d] that the district court’s analysis may have been

affected by its statement that ‘[i]n the prison context,

retaliation claims are treated with skepticism.’ Id. at *9 (citing

Adams v. Rice, 40 F.3d 72, 74 (4th Cir. 1994)).” Jones v. Solomon,

90 F.4th 198, 215 (4th Cir. 2024) (second set of brackets in

original); see id. at 202. The Fourth Circuit continued:

To be sure, [the Fourth Circuit’s] 1994 opinion in Adams

v. Rice and a later en banc case, Cochran v. Morris,

contain statements to that effect. See Adams, 40 F.3d at

74 (“Claims of retaliation must . . . be regarded with

skepticism, lest federal courts embroil themselves in

every disciplinary act that occurs in state penal

institutions.”); Cochran v. Morris, 73 F.3d 1310, 1317

(4th Cir. 1996) (en banc) (same). But Adams and Cochran

are distinguishable. In both cases, [the Fourth Circuit]

w[as] engaging in the highly deferential review of a

dismissal of claims as “frivolous” pursuant to 28 U.S.C.

7(...continued)

retaliation claim against school officials).

12

§ 1915, and [it] affirmed that dismissal where the

plaintiff’s complaint rested on generalized grievances or

a broad-strokes conspiracy allegation. See Adams, 40

F.3d at 74-75; Cochran, 73 F.3d at 1317-18. Adams

emphasized that a prisoner cannot just throw out an

accusation of retaliation without any allegation as to

“how or why [the] defendants retaliated against” him,

Adams, 40 F.3d at 74, and Cochran rejected the

plaintiff’s “assortment of vague accusations,” Cochran,

73 F.3d at 1318.

But the concerns underlying Adams and Cochran — that

the federal courts not be used as fora to litigate every

little inmate grievance dressed up as a retaliation claim

— are not implicated by this case. Jones[, the inmate-

plaintiff,] has made a specific claim of retaliation

related to specific protected activity that survived

§ 1915 review, and his claim is now being addressed at

the summary judgment stage. Adams and Cochran speak to

how courts are to evaluate prisoners’ retaliation claims

when conducting § 1915 frivolity review; they do not mean

that such claims are treated differently from others for

the life of the litigation.

Jones, 90 F.4th at 215-16 (footnote omitted) (ellipsis and

penultimate set brackets in original).

A. Protected Activity

Turning to the components of Plaintiff’s retaliatory transfer

claim, Defendant first asserts that “Plaintiff did not engage in

protected First Amendment activity.” (Docket Entry 43 at 5

(underscoring omitted) (capitalization altered).) More

specifically, Defendant maintains:

Here, Plaintiff was not just merely praying in the

I-Dorm dayroom, he was attempting to build a shrine.

Ex. 1. Indeed, Plaintiff admitted in a grievance that

Sgt. Watson ordered [Plaintiff] to remove his religious

items because Sgt. Watson believed [Plaintiff] was

building a shrine. Ex. 2 at 1. Moreover, Plaintiff also

admitted in a grievance that he was “doing the same

thing” as the Christian Sunday school and bible study.

13

Yet under the SCC unit services schedule the Islamic

services took place on Tuesdays and Fridays. Ex. 3. And

October 30, 2021 was a Saturday. Plaintiff thus was

attempting to hold an Islamic service during an

unauthorized time. Simply put there is no evidence here

that [Warden] Shelton or anyone at SCC was attempting to

prevent Plaintiff from exercising his First Amendment

rights of freedom to worship. Rather, there was a

legitimate penological reason to stop Plaintiff from

building a shrine or conducting a service at an

unauthorized time in the dayroom used by the prisoners in

the unit.

In sum, Plaintiff did not engage in protected First

Amendment activity.

(Docket Entry 43 at 5-6 (footnote noting court can take judicial

notice of days of week omitted).)

As an initial matter, Defendant provides no source citation

for her assertion that “Plaintiff also admitted in a grievance that

he was ‘doing the same thing’ as the Christian Sunday school and

bible study” (id.), and that statement does not appear in the

legible portions of the ostensibly grievance-related materials that

Defendant submitted in support of the Motion (see Docket Entries

43-1, 43-2). As the Federal Rules of Civil Procedure make clear,

Defendant bears the burden of “citing to particular parts of

materials in the record” to support her assertions, Fed. R. Civ. P.

56(c)(1)(A), and “[t]he [C]ourt need consider only the cited

materials [in ruling on a summary judgment motion],” Fed. R. Civ.

P. 56(c)(3). Further, the fact that the record contains prison

officials’ unsworn characterizations of Plaintiff’s actions as

building a shrine does not establish that Plaintiff engaged in

14

shrine-building. See, e.g., Reeves, 2011 WL 4499099, at *5 n.14;

Bowman, 2011 WL 1167320, at *8 n.9. Regardless, Plaintiff avers

that he “did not have a shrine in the I-dorm day room,” but instead

“was simply sitting at the table in the I-dorm day room with [his]

Muslim religious materials, studying and praying.” (Docket Entry

45-1, ¶ 10.) “There can be no doubt that the First Amendment

protects the right to pray. Prayer unquestionably constitutes the

‘exercise’ of religion.” Sause v. Bauer, 585 U.S. 957, 959 (2018).

Thus, even accepting Defendant’s unsworn descriptions of

Plaintiff’s actions as evidence, “there is at least a genuine

dispute of material fact,” Jones, 90 F.4th at 213, as to whether

Plaintiff engaged in protected religious activity.

Moreover, Plaintiff asserts that, “separate and apart from his

religious claim,” he “engaged in protected First Amendment

[a]ctivity by complaining to Defendant” in his November letters

“about Sgt. Watson’s threat to throw away his religious materials.”

(Docket Entry 45 at 13; see Docket Entry 45-1, ¶¶ 14-16.) By

failing to reply to the Opposition (see Docket Entries dated Apr.

15, 2025, to present), Defendant conceded this argument, see, e.g.,

Kinetic Concepts, Inc. v. Convatec Inc., No. 1:08cv918, 2010 WL

1667285, at *8 (M.D.N.C. Apr. 23, 2010) (explaining that “a party

who fails to address an issue has conceded the issue”) (collecting

cases). In any event, “[t]he First Amendment protects the right to

petition the Government for a redress of grievances.” Martin, 858

15

F.3d at 249 (internal quotation marks omitted). “[P]risoners

retain this constitutional right while they are incarcerated.”

Id.; see also, e.g., Jones, 90 F.4th at 213 (“filing grievances is

a protected activity”). This right extends to petitions outside

the prison’s formal grievance procedure. See, e.g., Patton v.

Kimble, 717 F. App’x 271, 272 (4th Cir. 2018) (concluding that

prisoner’s alleged “verbal complaint to [officer’s] supervisor”

qualified as protected first-amendment activity); Martin, 858 F.3d

at 249 (concluding that prisoner plausibly alleged first-amendment

retaliation claim where he allegedly “attempted to informally

resolve a grievance” by “filling] an electronic kiosk message

against a prison sergeant [for battery]” (internal quotation marks

and brackets omitted)). Thus, Plaintiff’s complaints to Defendant

regarding the dayroom incident qualify as protected first-amendment

activity. (See Docket Entry 45-1, 14-16 (describing letters) .)

Accordingly, construing the record in the light most favorable

to Plaintiff, he “has satisfied the first prong of th[e first-

amendment retaliation] test,” Jones, 90 F.4th at 213.

B. Adverse Action

Defendant next maintains that Plaintiff did not suffer an

adverse action. (See Docket Entry 43 at 6-8.) “For purposes of a

First Amendment retaliation claim under Section 1983, a plaintiff

suffers adverse action if the defendant’s allegedly retaliatory

conduct would likely deter a person of ordinary firmness from the

16

exercise of First Amendment rights.” Jones, 90 F.4th at 214

(internal quotation marks omitted). As Defendant concedes, “‘a

prison transfer or the threat of a transfer can be an adverse

action if that transfer would result in foreseeable, negative

consequences to the particular prisoner’” (Docket Entry 43 at 7

(quoting and citing Hill v. Lappin, 630 F.3d 468, 474-75 (6th Cir.

2010))). See also, e.g., Jones, 90 F.4th at 214 (“Prison officials

certainly have broad latitude to relocate prisoners as needed for

the purposes of prison administration and safety. But they may not

violate the First Amendment by transferring a prisoner in

retaliation for protected conduct. Additionally, a transfer or

placement in a more restrictive or dangerous setting can constitute

an adverse action.” (emphasis added) (citations omitted)); Moore v.

Howard, 410 F. Supp. 1079, 1080 (E.D. Va. 1976) (“Disciplining

inmates for pursuing legal remedies to redress alleged abuses of

their rights, either by a direct deprivation of privileges or by a

denial of potentially available privileges, can similarly severely

discourage them from effectively and appropriately utilizing the

courts.”).

Nevertheless, Defendant would have the Court grant summary

judgment in her favor on the ground that:

Plaintiff does not allege that his transfer to RCI

had any foreseeable adverse effect on him other than that

he would be unable to participate in SCC’s work release

program. Yet Plaintiff has no right to participate in a

work release program. And such a consequence is thus, at

best, de minimis.

17

In short, any allegedly adverse action taken by

[Warden] Shelton was de minimis and would not deter a

person of ordinary firmness.

(Docket Entry 43 at 7-8 (citations omitted).)

Defendant’s focus on Plaintiff’s lack of entitlement to

participation in the work release program misses the mark because

the Fourth Circuit has made clear that a prisoner’s transfer to “a

more restrictive . . . setting,” Jones, 90 F.4th at 214, “can

constitute an adverse action,” id., despite the fact that the

prisoner otherwise lacks the right to remain in a less restrictive

setting, see id. (recognizing “[p]rison officials[’ ]broad latitude

to relocate prisoners,” but emphasizing that “transfer” to “more

restrictive . . . setting can constitute an adverse action”).

Moreover, although “a plaintiff seeking to recover for retaliation

must show that the defendant’s conduct resulted in something more

than a de minimis inconvenience to [the plaintiff’s] exercise of

First Amendment rights,” Jones, 90 F.4th at 214 (internal quotation

marks omitted), “[t]he de minimis threshold is intended to weed out

only inconsequential actions,” Blankenship v. Setzer, 681 F. App’x

274, 278 (4th Cir. 2017) (ellipsis and internal quotation marks

omitted). And — as established by the Fourth Circuit — “a transfer

. . . [to] a more restrictive . . . setting,” Jones, 90 F.4th at

214, does not (as a matter of law) constitute “a de minimis

inconvenience,” id. (italics and internal quotation marks omitted),

or “inconsequential action[],” Blankenship, 681 F. App’x at 278

18

(internal quotation marks omitted); rather, for purposes of a

first-amendment retaliation claim, such transfer “can constitute an

adverse action,” Jones, 90 F.4th at 214.

Here, Plaintiff avers that the transfer deprived him of the

ability to participate in the work release program, through which

he earned $420 per month. (See Docket Entry 45-1, ¶¶ 20, 23.) By

definition, incarceration without work release qualifies as “more

restrictive,” Jones, 90 F.4th at 214, than incarceration with work

release. Plaintiff further avers that his loss of work release

impaired his participation in MAPP, delaying his potential parole

date. (See Docket Entry 45-1, ¶¶ 21-22.) Taken together, such

consequences amount to “something more than a de minimis

inconvenience,” Jones, 90 F.4th at 214 (internal quotation marks

omitted). See Watson v. Rozum, 834 F.3d 417, 423 (3d Cir. 2016)

(deeming “loss of the ability to participate in prerelease

programs, including work release,” as “clearly more than de minimis

consequences” (italics omitted)); see also, e.g., Weaver v. Graham,

450 U.S. 24, 33–34 (1981) (describing diminishment of opportunity

“to shorten [prisoner’s] time in prison” as “disadvantageous”);

Brown v. Stapleton, 142 F.4th 252, 259 (4th Cir. 2025) (rejecting

argument that inmate’s “fifteen-dollar fine was so de minimis that

it does not qualify as a deprivation” under Due Process Clause,

explaining that “[f]ifteen dollars may be a sum of small

consequence outside prison walls, but it is of great significance

19

within them[]”); Webb v. Butler, No. 5:18ct3127, 2024 WL 1309165,

*6 & n.7 (E.D.N.C. Mar. 27, 2024) (explaining that, although

complaints such as switch from weekly to biweekly haircuts

qualified as de minimis, “the court cannot say that the loss of

email privileges, a more hostile environment with less supervision,

more lockdown time, and less access to natural light or recreation

. . . constitute de minimis inconveniences”); Moore, 410 F. Supp.

at 1080 (“Classification decisions . . . for work release in the

correctional system[] should not be affected by an individual’s

efforts to petition the courts for a redress of grievances.”).

Therefore, a reasonable fact-finder could determine that,

“[v]iewed in the light most favorable to [Plaintiff], the facts in

this case support the conclusion that the transfer was an adverse

action,” Jones, 90 F.4th at 215, on the ground that, at a minimum,

“the combined effect of the[ foregoing] aspects of the transfer

would likely deter a person of ordinary firmness from the exercise

of First Amendment rights,” id. (internal quotation marks omitted).

See also, e.g., Hill, 630 F.3d at 475 (“Being threatened with a

transfer to a more restrictive living environment with fewer

privileges would deter a person of ordinary firmness from

exercising the constitutional right to file grievances.”).

C. Adverse Action

Defendant further asserts that “Plaintiff has failed to show

a causal connection between the filing of his grievance and the

20

transfer.” (Docket Entry 43 at 8.) More specifically, Defendant

contends:

The only evidence Plaintiff offers of retaliation is

that he “advised” [Warden] Shelton on November 7 and 14,

2021, that his constitutional rights were being violated,

and that on November 17, 2021, he was transferred to RCI.

That said, “temporal proximity” between an inmate’s

protected activity and the allegedly retaliatory official

action “is simply too slender a reed on which to rest” a

Section 1983 retaliation claim. Wagner v. Wheeler, 13

F.3d 86, 91 (4th Cir. 1993). Indeed, the objective

evidence shows that Plaintiff was transferred as part of

a swap request from another facility in which he met all

the criteria. Ex. 1. And, as discussed above, Plaintiff

was attempting to use the dayroom for authorized services

at an unauthorized time. And therefore, a transfer to

maintain institutional authority would be for a

legitimate penological purpose, related to protected

First Amendment activity. Id[.]; [Cochran], 73 F.3d at

1317.

Plaintiff has failed to sufficiently tie his act of

writing to [Warden] Shelton to the transfer that he

claims was instituted to retaliate for the complaints.

Therefore, the Court should find that Plaintiff has

failed to show the required causal link.

(Docket Entry 43 at 8-9 (emphasis in original).)

Contrary to Defendant’s contentions, in the specific context

of prisoner-asserted, first-amendment retaliation claims against

prison officials, the Fourth Circuit recently reiterated that

“temporal proximity alone can create the inference of causation.”

Hodges v. Meletis, 109 F.4th 252, 262 (4th Cir. 2024); see also

Tobey v. Jones, 706 F.3d 379, 387 (4th Cir. 2013) (explaining that

“[the] complaint most certainly sets forth a valid First Amendment

retaliation claim” where “the temporal proximity of [the

plaintiff’s] peaceful protest and his arrest, unsupported by

21

probable cause, shows [the defendants] engaged in impermissible

retaliation”). Of course, “[w]here a plaintiff rests his case on

temporal proximity alone, the temporal proximity must be very

close.” Penley v. McDowell Cnty. Bd. of Educ., 876 F.3d 646, 656

(4th Cir. 2017).8

But here Plaintiff has come forth with evidence of very close

temporal proximity by averring (A) that he wrote Defendant letters

on November 7, 2021, and November 14, 2021, complaining about

Sergeant Watson’s order on October 30, 2021, regarding the removal

of Plaintiff’s religious materials (see Docket Entry 45-1, ¶¶ 14-

16), and (B) that, “[o]n November 17, 2021, three days after

[Plaintiff’s] second letter to Warden Shelton, Warden Shelton

ordered [Plaintiff’s] transfer from Sanford Correctional Center to

Richmond Correctional Institution” (id., ¶ 18; see also id., ¶¶ 19

(averring that, “[o]n November 17, 2021, a [DAC] officer removed

[Plaintiff] from [his] work release assignment and brought [him]

back to Sanford Correctional Center to prepare for the transfer”),

20 (averring that transfer resulted in loss of Plaintiff’s “ability

to participate in work release”)). Such “temporal proximity . . .

tends to show causation.” Foster v. University of Md.-E. Shore,

787 F.3d 243, 253 (4th Cir. 2015) (emphasis omitted); see also,

8 Notably, Plaintiff does not rest his case merely on

temporal proximity. (See, e.g., Docket Entry 45-1, ¶ 28

(emphasizing grievance responses connecting transfer to protected

activity).)

22

e.g., Jones, 90 F.4th at 213 (concluding inmate satisfied causation

prong where, inter alia, transfer occurred two days after officer

who ordered transfer met with inmate regarding his grievances) .’

As for Defendant’s assertion that “the objective evidence

shows that Plaintiff was transferred as part of a swap request from

another facility” (Docket Entry 43 at 8-9 (emphasis omitted)), the

grievance’s unsworn statement to that effect does not sever the

causal link. See, e.g., Reeves, 2011 WL 4499099, at *5 n.14;

Bowman, 2011 WL 1167320, at *8 n.9.?° Moreover, the initial

response to Plaintiff’s grievance explicitly linked Plaintiff’s

transfer to his religious activities and expression regarding

religious discrimination. (See Docket Entry 45-1 at 10.) Even

9 Wagner does not undermine the foregoing analysis. In that

decision, which involved allegations that an employer terminated an

employee for reporting certain environmental problems, see Wagner,

13 F.3d at 88-89, the record reflected that the plaintiff had

compiled an “extensive list of infractions and incidents of

insubordination,” id. at 91, as well as that, by the time the

defendant recommended terminating the plaintiff’s employment, the

plaintiff’s “job performance had become so dismal that his

environmental reports played no substantial role in the decision to

fire him,” id. Further, the Wagner plaintiff “failed to muster any

real evidence that the ostensibly legitimate reasons given for his

termination were pretextual. The only argument [the plaintiff]

advance[d] to show that his firing was in retaliation for his

reports of environmental problems concerns the timing of those

reports and the timing of certain reprimands he received for poor

performance of his duties.” Id. According to the Fourth Circuit,

“[t]his temporal proximity .. . [wa]s simply too slender a reed on

which to rest a Section 1983 retaliatory discharge claim.” Id.

(emphasis added).

10 The same principle applies to Defendant’s assertion that

“Plaintiff was attemoting to use the dayroom for authorized

services at an unauthorized time” (Docket Entry 43 at 9).

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setting aside this explicit connection, the shifting explanations

for Plaintiff’s transfer undermine Defendant’s position. See,

e.g., Jones, 90 F.4th at 213 (“[The d]efendants’ alternate

explanation for the transfer has shifted over time, creating doubt

as to the veracity of that explanation.”). Accordingly, at least

at this stage of the proceedings, Defendant cannot secure judgment

as a matter of law on the causation aspect of Plaintiff’s

retaliation claim. See id.

D. Qualified Immunity

As a final matter, Defendant contends that qualified immunity

shields her from Plaintiff’s claim. (See Docket Entry 43 at 9-10.)

“Qualified immunity protects government officials from civil

liability and suit insofar as their conduct does not violate

clearly established statutory or constitutional rights of which a

reasonable person would have known.” Jones, 90 F.4th at 207

(internal quotation marks omitted). “In the Fourth Circuit, we

have a split burden of proof for the qualified-immunity defense.

The plaintiff bears the burden on the first (constitutional right)

prong, and the officer bears the burden on the second (clearly

established) prong.” Id. (brackets and internal quotation marks

omitted). Yet, aside from recounting general qualified immunity

principles (see Docket Entry 43 at 9-10), Defendant limits her

argument to the following:

In this case, [Warden] Shelton did not violate

Plaintiff’s constitutional rights. Still, even if

24

Plaintiff’s constitutional rights were violated, those

constitutional rights were not clearly established.

(Id. at 10.) This bald assertion fails to satisfy Defendant’s

burden.

Indeed, strictly speaking, Defendant waived her qualified

immunity argument. See, e.g., Grayson O Co. v. Agadir Int’l LLC,

856 F.3d 307, 316 (4th Cir. 2017) (“A party waives an argument

. . . by failing to develop [its] argument — even if [its] brief

takes a passing shot at the issue.” (internal quotation marks

omitted) (brackets in original)); see also Hensley on behalf of

N.C. v. Price, 876 F.3d 573, 580 n.5 (4th Cir. 2017) (explaining

that “a party must do more than take a passing shot at an issue to

properly preserve it” and that “[t]he party must actually develop

its argument” and finding waiver where “[the defendants’] opening

brief contains none of the development required,” as it contained

“no argument on the ‘clearly established’ prong of the qualified

immunity test” and “no citation to cases actually applying the

‘clearly established’ prong of the qualified immunity test”

(brackets and certain internal quotation marks omitted)). Further,

the Opposition argues that the implicated rights qualified as

clearly established (see Docket Entry 45 at 20-22), arguments that

Defendant conceded by failing to reply thereto, see, e.g., Kinetic,

2010 WL 1667285, at *8.

Regardless, “[i]t is beyond dispute that prison officials

cannot retaliate against inmates for exercising a constitutional

25

right.” Booker v. South Carolina Dep’t of Corr., 855 F.3d 533, 543

(4th Cir. 2017). More importantly, long before the incident at

issue here, the Fourth Circuit recognized that “an inmate’s First

Amendment right to be free from retaliation for filing a grievance

was clearly established.” Id. at 546; see also, e.g., Jones v.

Bailey, No. 7:16cv469, 2018 WL 1513297, at *10 (W.D. Va. Mar. 27,

2018) (“It was clearly established as of October 2014 that inmates

have a constitutional right to be free from retaliation for filing

prison grievances and for practicing their religions.”). And even

more significantly, as of at least 2015, “it was clearly

established that transferring a prisoner to another institution in

retaliation for the prisoner filing a grievance violated his First

Amendment rights.” Jones, 90 F.4th at 216.

CONCLUSION

Defendant has not established her entitlement to summary

judgment.

IT IS THEREFORE RECOMMENDED that the Motion (Docket Entry 42)

be denied.

This 13th day of August, 2025.

/s/ L. Patrick Auld

L. Patrick Auld

United States Magistrate Judge

26