Petition for Writ of Certiorari — Demetric Hardaway, Petitioner v. Lori Myers, et al.

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FILED: June 13, 2022

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 21-7568

(8:20-cv-00149-RMG)

DEMETRIC HARDAWAY

Plaintiff - Appellant

v.

LORI MYERS

Defendant - Appellee

and

FRANCES JOHNSON; NICOLE CHAPMAN; EDSEL TAYLOR

Defendants

JUDGMENT

In accordance with the decision of this court, the judgment of the district

court is affirmed.

This judgment shall take effect upon issuance of this court’s mandate in

accordance with Fed. R. App. P. 41.

/s/ PATRICIA S. CONNOR. CLERK

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UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 21-7568

DEMETRIC HARDAWAY,

Plaintiff - Appellant,

v.

LORI MYERS,

Defendant - Appellee,

and

FRANCES JOHNSON; NICOLE CHAPMAN; EDSEL TAYLOR,

Defendants.

Appeal from the United States District Court for the District of South Carolina, at

Anderson. Richard Mark Gergel, District Judge. (8:20-cv-00149-RMG)

Decided: June 13, 2022

Submitted: March 29, 2022

Before HARRIS, QUATTLEBAUM, and HEYTENS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Demetric Hardaway, Appellant Pro Se.

Charleston, South Carolina, for Appellee.

Elloree Ann Ganes, HOOD LAW FIRM,

A ppeo d i x

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Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:

Demetric Hardaway appeals the district court’s order accepting the magistrate

judge’s recommendation to grant summary judgment in favor of Lori Myers in Hardaway’s

42 U.S.C. § 1983 action. We have reviewed the record and find no reversible error.

Accordingly, we affirm the district court’s amended judgment. Hardaway v. Myers, No.

8:20-cv-00149-RMG (D.S.C. Sept. 23, 2021). We dispense with oral argument because

the facts and.legal contentions are adequately presented in the materials before this court .

and argument would not aid the decisional process.

AFFIRMED

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Entry Number 83

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IN THE UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH CAROLINA

ANDRESON/GREENWOOD DIVISION

Demetric Hardaway,

Plaintiff,

v.

Lori Myers.

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)

)

)

)

)

)

Civil Action No. 8:20-cv-00149-RMG

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Defendant.

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ORDER AND OPINION

This matter is before the Court upon the Report and Recommendation (“R & R “) of the

I Magistrate Judge, recommending the Court grant Defendants’ motion for summary judgment.

(Dkt. No. 78). For the reasons stated below, the Court adopts the R & R as the Order of the Court.

I.

Background

Demetric Hardaway, (“Plaintiff’) filed this action proceeding pro se and in forma pauperis.

(Dkt. No. 1). Plaintiff filed an Amended Complaint on February 28, 2020. (Dkt. No. 11). All of

' Plaintiffs claims have been dismissed by the Court except Plaintiffs First Amendment retaliation

claim against Defendant Lori Myers.- (Dkt. No. 23). Plaintiff alleges that whiie incarcerated at

TdacDougail Correctional'insdtute'( 'MacDougaiirr), Defenaai:i removed Plaintiff from a work

assignment with the litter crew and reassigned him to the chicken farm after Plaintiff filed a

* grievance- alleging he was subjected to unhealthy, hazardous, and unsanitary work conditions on

Me litter crew. (Id at 9-10,13). Gn May 7,2021, Defendant filed a motion for summary judgment.

kt. No. 67). Plaintiff filed a response in opposition. (Dkt. No. 73). On August 27, 2021, the

Magistrate Judge issued an R & R recommending the Court grant Defendant’s motion for summary

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judgment. (Dkt. No. 78). On September 10, 2021, Plaintiff filed objections to the R & R. (Dkt.

•No. 31). The matter is ripe for the Court’s review.

II.

Legal Standard

To prevail on a motion for summary judgment, the movant must demonstrate that there is

r.D genuine issue of any material fact and that the movant is entitled to judgment as a matter of

u\\v. Fed. R. Civ. P. 56(a). The party seeking summary judgment has the burden of identifying

the portions of the “pleadings, depositions, answers to interrogatories, any admissions or. file,

together with the affidavits, if any, which show there is no genuine issue as to any material fact

and that the moving party is entitled to judgment as a matter of law.” Celoiex Corp. v. Catrett,

47^UJ.S. 317, 322 (1986). The Court will construe all inferences and ambiguities-against the

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moVant and in favor of the non-moving party. US. v. Diebold, Inc., 369 U.S. 654, 655 (1962).

Thc. existence of a mere scintilla of.evidence in support of the non-moving patty’s position is

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insufficient to withstand a motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477

U.S; 242, 252 (1986). However, an issue of material fact is genuine if the evidence is such that a

: rasonable jury could return a verdict in favor of the non-movant. Id. at 257.

* “V^hen the moving party-has carried its burden under Rule 56(c), its opponent must do

- .*:bre.than simply show that, there is'sojne metaphysical doubt as to the materia! facts.” Matsushita .

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Size. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). “In the language of the Rule,

U;e nonmoving party must come-forward with “specific facts showing that .there is a genuine issue

for trial.” Id. at 587. “Where the record taken as a whole could, not lead a rational trier of fact to

find for the non-moving party, there is no ‘genuine issue for trial.”’ Id...quoting First Nat'l Bank

• cfAriz. v. Cities Serv. .Co., 391 U.S. 253, 289 (195.8));% 1

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The Magistrate Judge makes-only a recommendation to this Court. The recommendation

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no presumptive weight, and: the responsibility for making a final determination remains with

this Court. See Mathews v. Weber, 423 U.S. 261, 270 - 71 (1976). This Court is’charged with

making a de novo determination of those portions of the Report and Recommendation to which

specific objection is made. Additionally, the Court may “accept, reject, or modify, in whole or in

part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). In

f.e absence of any specific objections, Va district-court neeo not conduct & de novo review,‘but

■'.stead must only satisfy itself that there is no clear error cn the face of the record in order • r accept

■ e recommendation.” See Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 31C, 315 (4th

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J ^£005) (interna! quotation omitted). Plaintiff filed objections, and the Court will review' the R

R de nevo.

. III.

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' ‘pJpon a careful review of the record, the R & R, and Plaintiffs objections to the R & R, the

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Court finds the Magistrate Judge comprehensively analyzed the issues to determine that there is

no genuine issue of material fac: and Defendant’s motion for summary judgment should be

gran ted. ’R|a intiff’s sole remaining claim is a First Amendment retaliation claim for Defendant

• -ivlegf^diy transferring

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- Tc prove a First Amendment, retaliaticr. claim pursuant to •} 1983, a plaintiff musfp~cve the

following:

First, the plaintiff must demonstrate that his or her speech was protected. Huang v. Ed. of

Governors, 902 F.2d 1 134, 11.40 (4th Cir. 1990). .Second, the plaint!"f must demonstrate that

the defendant's alleged-retaliatory, action adversely affected the piair.tiffs constitutionally

protected speech. See ACLUcfMd.,.Ihc..v. Wicomico Cty., Md., 995 F.2d 780, 785 (4th Cir.

1993) (stating that “a showing cf adversity is essential to any retaliation claim.”). Third, the

plaintiff jnust establish that a causal relationship exists between its speeeh’and the defendant’s

retaliatory'-action. See Huang, 902 F.zf at 1140.

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Gccter v. Lewis, No. 2:17-cv-02165-DCC, 2019'WL2117752, at * 2 (D.S.C. May 15, 20.9).. A

-.p^inLifTmust show that' the defendant’s actions adyerseiydmpaoted him. 'ACLU, 999 F.2d at 785. .* •

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To establish a retaliation claim, a plaintiff must show that he suffered SGtne harm in response to

C's exercise of a constitutionally protected right.” Mitchell v. Murray, 856 r. Supp. 2S9,2?4 (£.D.

'/a. 1994). “[F]or purposes of a First Amendment retaliation claim under § 1983, a person, suffers

tverse action if the defendant’s allegedly retaliatory conduct would likely deter ‘a person of

: .binary, firmness’ froni the exercise of First Amendment rights.” Constantine v. Rec.'crs &

■'odors ofGeorge Mason Univ., 411 F.3d474, 500 (4th Cir. 2005). The retaliatory act must “chill,

: '“pair, cr deny [an inmate’s] right to exercise his constitutional right.” BoHance v. Young, 130 ?.

5xpp,2d 752, 770 (W.D. Va. 2000). ■

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Upon a careful review of the pleadings and the record, the Court finds the Plaintiff has not

demonstrated that Defendant’s alleged retaliatory action wcu'd not deter- a person of ordinary

Mrpness from the exercise of pursuing a grievance. Plaintiff first began to-submit .written

complaints regarding the litter crew working conditions in May 2019. (Dkt. No. 67-4 at 1).

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I aintiff filed a Step 1 Grievance regarding the same on May 30, 2019. (Id. at 2-3). In her

i; fildavit,defendant states she discussed vvith Plaintiff the concerns contained in Flaintiff s Step

(D?X

at 7 7[ lC-‘5;. Defendant states die -brought:

oonco -'-v. fo*ihe--‘

-.r'erdicn of the lltter.cvev/ supervising officer ana ordered that Plaintiffs concerns be addressed

r .“.mediately. [Id at ^1 14): Defendant states she explained to Plaintiff that Plaintiffs >:-roem .

:yarding-the litter crew’s meals could not be addressed by Defendant because the meals are,

regulated by S.CDC statewide. (Id. at %% 15-;6). Defendant states that Plaintiff then told Defendant

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did not intend to report.for work oh the litter crew. (Id. atfjj 18-19).

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‘•When an inmate fails to report tc a v/ork assignment without an excuse, he is r • bjeo* to

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' 'sciplir.arv action .per SGDC policy/ -{Dfct. Nod. 67-5, at

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16-17). Disciplinary

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/.tions can'affect an inmate’s ability' tc be transferred to other institutions or county detention

•■'.hters. (Dkt. No. 67-3 at ^ 21). In her Affidavit, Defendant states she did net want Plaintiff to

!**, subject tc disciplinary' action for failing to report to his litter crew work assignment or have this

interfere with his attempt to be transferred, so she directed he be transferred to the farm crew

operated out ofMacDcugall.- (Diet. No. 67-3 at

23-24). Defendant states she old not bciieve it

v.ouid be helpful to have someone with the mindset of Plaintiff cut on litter crev/ because it would

: ’feet the other crew members and potentially prompt other inappropriate conduct 'ey ;:ow

: embers. (Id at *j 25).

$ ‘Plaintiff was transferred to the chicken farm in June 2019. (Dkt. No. 67*2 at 2). Plaintiff

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r'og'es he v/as projected to apply for a designated facility transfer on July 14, 2019, which would

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f fow -him to receive inmate pay. (Dkt. No. 11 at 7). Plaintiff alleges his work reassignment to

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:. £ chicken farm would hinder him from meeting the facility transfer and set him back six months.

C.i.). After Plaintiff v/as transferred, he Died three ARTSMs regarding the litter crew’s work

e;nditionssand his transfer to the chicken farm. (Dkt. No. 67-8). Plaintiff filed a Step 2 Grievance

-o-at-v: ?o thtJccoditions MacDc .\y 1!

ref?r?n-"ed his ■ranr-fer to-the oh:c/.orc farm. -rDki.-No. ■

d?-9). In addition, Plaintiff initiated the present ir.vsuit. (Dkt. No. 1).

Upon a careful review of the record s.r.d viewing the evidence in a !:ght most favc-at.!^ to .

friaintifr as the non-moving party, the Court* finds Plaintiff has failed t:- present evidence to

demonstrate he was harmed because of the..transfer between v/s.k assignments. In his cVeoticns

t: the R & R., Plaintiff states the chicken farm was the least desirable assignment due to a shortage

inmate workers and limited breaks.

(Dkt. No. 81 at 2>

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Yet, prisoners do net have a

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constitutional right to wbrk or ceil assignments.” Easter v. Inman, C/A No. 2:04-cv-0029fi, 2006

V/L 5915504, at * 7 (E.D. Va. Sept. 22, *2006) (citing Gaston v. Taylor, 946 F.2d 340 (4th Cir.

1291); Altizer v. Paderick, 569 F.2d 812, 813-14 (4th Cir. 1978) (holding custody classifications

and work assignments are generally within the discretion of the prison administrator); Jcckson v.

LaManna, 2007 WL 1862371 (D.S.C. 2007) (stating that “[a]ll inmate job assignments are subject

tc the institution’s needs, and inmates do not have any fundamental constitutional right to any

specific work assignment”).

Plaintiff objects to the R & R, stating that he does not have to prove he was deprived of his

T:rst Amendment rights to establish a First Amendment retaliation claim. (Dkt. No. 81 at 2). First

/ rriendment retaliation is actionable because “retaliatory actions may tend to chill individuals’

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oVsVcisc of constitutional rights.”5 Constantine v. Rectors and Visitors of George Mason Vniv.,

<; VF.3d 474, 500 (4th Cir. 2005) (citing ACLUcf Md., Inc. v. Wicomico Cniy.'Md., 999 F.2d at

730; 735 (4th Cir. 1993). At the same time, not all retaliatory conduct does so and a Plaintiff

seeking to recover for retaliation must shew that the Defendant’s conduct resulted in sernetning

r., ore than a “de minimis inconvenience” to the exercise of First Amendment rights. Yet, a plaintiff

reed not prove the alleged retaliatory conduct caused her to cease First Amendment activity

r together, fsL Fc- p-r-porer

yetAkAcn. o!>hn.

f';983.

plaintiff

r-ffers adverse action if the defendant’s allegedly retaliatory conduct would likely deter “a person

c “ordinary firmness” from the exercise of First Amendment rights. Id.

Tits Court agrees with the R & R that Plaintiff has failed to demonstrate evidence that

establishes Defendant’s allegedly retaliatory conduct would likely deter a person of ordinary

( firmness from pursuing a ,grievance. Plaintiff does not present any evidence he was harmed by the

transfer to the chicken farm and .Plaintiff continued to .file ARTSMs, a Step 2 grievance, and a

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’ Irwsuit'.Rlairttiff presents no evidence related to his claim he was to receive .a facility transfer on

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1J%\y 14,-2019 and whether he would have received that transfer had he not been reassigned to the

• c/xicken farm. Thus, there is no-issue of material fact that Plaintiff fails to prove the alleged

retaliatory action was likely to deter a person of ordinary firmness from exercising his First

Amendment rights and Defendant’s motion for summary judgment is granted.

IV.

Conclusion

For the reasons stated above, the Court ADOPTS the R & Ft as the Order of the Court. (i)kt.

] To. 73). Defendants’ motion for summary judgment is GRANTED. (Dkt. Nc. 67).

AND IT IS SO ORDERED.

•s/ Richard ~M. Gerges

Richard M. Gergel

United States District Judge

September 22, 2021

Charleston, South Carolina

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