granted like to introduce my student kylie barnhart from the west virginia university college of law she will be arguing on behalf of mr martin in the first case today it please the court this court should reverse the lower court's dismissal of mr martin's complaint and remain on the case for further proceedings for three reasons first mr martin clearly pleaded a first amendment retaliation claim by pleading that he suffered an act of reprisal and retaliation for filing a grievance second mr martin clearly pleaded both if you can i just stop you on the first one so i just make sure i understand your your position is that he it was adequately pled this first amendment retaliation claim and nobody addressed it below yes your honor that is correct that's true doesn't mean we don't have jurisdiction because there's no final order so we should just dismiss this appeal for want of jurisdiction the effect would be the same it would go back to the district court with instructions to consider the retaliation claim first of all that would be prejudicial to mr martin he has already filed a complaint and an amended complaint in an earlier action as well as a complaint a sworn affidavit and an amended complaint in the current action so would undermine judicial economy to make him go back and file an additional amended complaint to mr martin did you probably have to file anything it would just go back to the district court in the district court would now have to address all of the claims in the complaint that's already been filed he pleaded bad joint appendix page five six forty three and forty four and based on mr martin status as a pro se litigant and the liberal construction that is to be afforded to their pleadings this statement along with the detailed and claim he pleaded that he was engaged in a protected first amendment activity this court in booker person south carolina department of corrections as well as several district courts within the circuit have recognized that inmates do have a first amendment right to be free dismissal without prejudice can be a final unappealable order if it was final in fact and it was like just what i just i'm sorry your honor i must have misunderstood your question well since the district court did not even address mr martin's first amendment claim it didn't point out any deficiencies that could have been cured through a further amendment of his complaint and as i just stated he is he has properly pleaded each element as well as the elements of the other claims and as mr martin's the jurisdiction on mr martin's due process claim he the district court dismissed it as a matter of law based on the erroneous legal holding that south carolina law confers no liberty interest in remaining in the general population therefore the district court did not point out any factual deficiencies that could have been cured by an amended complaint and the same for the equal protection claim mr martin properly pleaded that he was treated differently from other  also found grievances related to on what a touching some batteries and the district court did not point out any specific facts that could have been alleged and amended complaint and the equal protection claim is so closely intertwined with the other two claims you about the second prong of the equal protection claim the sort of you have to show the differential treatment and get it wrong whom for a minute i agree that the complaint does enough to allege the differential treatment but what's the purposeful discrimination that's alleged in complaints don't get put in segregation and your client did so that's the differential treatment but how can that also be the purposeful discriminate do you know what i'm saying yes your honor but but here captain duffy's motive for his placement is a question of fact to be determined at trial and mr martin at this stage has pleaded that there was some ill intentioned or it was him payback were towelie agent for his filing of that great insanity because that doesn't differentiate him or the from the other people do you know what i'm saying i'm really having trouble trying i agree i read the complaint also to say i was one and i was treated differently than all these other people who filed complaints and more and put in segregation on but then too and the reason i was put in segregation is because i filed a complaint and i guess but that doesn't if that's the reason that doesn't do anything to sort of explain that can't be the explanation because the whole premise the first prong is that's not usually what happens when people file complaints right but our position is that it was there was no one tensions over this intentional discrimination against him simply because and mr martin has been stated in other conversations that this had become rogers and mr martin has also pleaded throughout his complaint that there were other incidents that occurred for instance the joint appendix page alive in the incident report against another prison official and he was not placed in segregation or any sort of different area based on that allegation so even in in that sense he in this case was placed in segregation simply because he father grievance against sergeant rogers and  the south carolina apartment of corrections policies provide that he was to receive a seventy two hour view a seven day were view as well as a thirty day review to determine whether he was trying to maintain segregation and those policies can be found at the repl seventeen and eighteen and to be clear mr martin did not receive any of those review procedures and furthermore only an extension of up to thirty days could have been granted by the warden and again mr martin not entitled to qualified immunity on that claim first of all it was not addressed by the district court therefore this court should not address it today and kept captain darby only raises the defense of qualified immunity as to mr martin's first amendment this court in constantine vs visitors a rector's of george mason university how bad the first amendment right to free speech includes not only the affirmative right to speak but also the right to be free from retaliate by a public official for the exercise of that right everyone is running around saying here's an open question in the fourth circuit these cases that that also discussed qualified immunity in this context did not look at the prison litigation reform act and after the enactment of the prison litigation reform act you say it should or should not i mean in other words if the basis does not lie in the fourth circuit nor the supreme court may we find such a basis for a clearly established right by  you were saying there's no case that says what i just said that is that the consensus of the law in other circuits does not make a right principle that was not limited to the higher education contacts does just that it makes the law clearly established it was not limited to any specific case and and the fact that there are other district courts and  then the case that was brought up in the twenty eight j letter hogan versus carter has no bearing in this case because it was decided under the old local rule thirty sixty where the court could not even cite unpublished opinions and the unpublished opinions that the court looked at in the hogan vs quarter case that the plaintiff for the court said were only all googly relevant to the case at hand and in that case and here it's completely different as i've already stated we have constantine and the other circuit courts of appeals that have specifically recognized this right as well as this court and several district  completely ignores mr martin's amended complaint that was attached to his objections to the r nor and given mr martin status as a pro se litigant it should not matter that his objections came in the form of a document titled amended complaint rather than a document titled objections to the are nor and in his amended complaint he restated that he suffered an act of retaliation for filing agreements that his due process rights were violated by police being placed in segregation without review and by treating him differently from other similarly situated individuals so mr martin this court does have jurisdiction in this case today again i would i would like to remind the court that mr martin's complaint and his amended complaint are to be liberally construed and mr martin has pleaded sufficient facts for a farce the members how you can claim a due process claim as well as an equal protection claim and if there are no f and fifteen a process was never even issued in the lower court and captain duffy was never served and is making her appearance for the first time in this particular court and that's significant first several because i guess it's significant from the point when i get to the qualified immunity has an additional argument in support of what the magistrate judge ruled and ultimately the district court adopted you know the question is that mr martin never preserved his right to appellate review certainly not on any type of first amendment retaliation claim or any due process claim he did file objections the objection that was f adopted the report right really national behind that well i mean bottom line is it still certainly certainly within the court's discretion there baber a look at those objections and the objections only do address a equal protection claim it's not even an appropriate objection it does not specify any error that was actually made by the magistrate court but it's a little bit odd isn't it to have to jack to something that the district court i'm sorry that the magistrate didn't do i mean the notice that these p on the retaliation claim there's nothing in there that i could disagree with because the magistrate just didn't reach my claim at all you were saying that's that's sort of odd posture i would suggest that that would be if that's the argument that would be clearly an objection that one would want that should have been raised by a specific objection a right says an act of retaliation it uses the term of art an act of reprisal harassment or retaliation because the plaintiff attempted to formally resolve a grievance they skate the technical requirements we also say to the extent and public opinion that the reason for this objection a finding is this so that the district court can reasonably act with some degree of understanding as to dejection is all about doesn't appear to district who let's you know confound it to any degree i mean at least you got to notice you not only have the reference equal protection you have the amended complaint actually attached to it and then i'll move on this whole idea that he filed an amended complaint with his objections if you carefully look at that amended complaint it reads word for word about ninety percent of it is word for word from the original complaint and the slight changes on well i mean bottom line is you know one of the things obviously this court needs to make certain is that has appellate jurisdiction really quickly there's a second argument for the same issue the same cases come up before this court previously mr martin filed almost a democrat complaint in two thousand and fifteen masher judge rogers issued an identical report recommendation and judge norton dismissed that came before this court and in two thousand and fifteen a three case there's no appellate jurisdiction under the domino sugar case for this court to get involved at this juncture just like you did in two thousand and fifteen can i can i ask you to address my jurisdictional concern below and my understanding is that if that is the posture we're in we have no jurisdiction because there is no final order the district court has and finally resolved all of the claims in this case do you have any reaction to that i think that's basically an offshoot of  domino sugar as well my bottom line is there is no decision from the district court final decision on the merits for this court to review so ultimately of course part of the part of the issue with the retaliation claim is that you also have the issue of whether or not the four circuit recognizes such a cause of action so there may be jurisdiction obviously before the court and that's the purpose of this appeal that's potentially the court has jurisdiction over determining whether  such a cause of action exists which you know brings me to to the merits of the case obviously on the first amendment retaliation claim there is no decision i publish decision in the fourth circuit finding that there is a retired first amendment retaliation claim in this particular context now you do have the adams vs rice case were this court nine hundred ninety four addressed whether or not prison grievance rights  constitutional law what is your point you point to the second prong of the well of out of unity are you saying we should not recognize such an action well i don't know that this is the appropriate case number one to to recognize that but but certainly if the court does recognize it circuits and they are a number of circuits that have recognized such a cause of action in this context however the standard has always been and to force a goodly with me are you saying that we should not recognize it before we get to the qualified immunity yes i'm suggesting that adams sources basis was not to recognize it being that every other circuit is looked at it as right because my position would be adams versus rice prevents this court from the at least a panel of this court from recognize it obviously and i'm bonk or can overturn adam's versus rice and recognize it because adams versus rice had a retaliation component to it in fact the court talks about a claim of retaliation the court talks to the  panel in athens versus rice talks about that there were four retaliatory attacks and then ultimately the court said you know quite simply that there and this is the words there is no constitutional right to participate in grievance proceedings and then the holds that any issue dealing with a grievance proceeding which would include retaliation for bringing a grievance that has fallen terribly provided by the state would fall within day adams holding that the have the booker case and the booker case was unpublished never addressed adams versus rice and that decision and it was i'm publishing came out fifteen days after fifteen days before the events in this particular case and of course going back are consequences and that was the talking clearly established and that's why as you differentiate you know one we talk about should it be all right second being doesn't satisfy the second prong that's right you know and so my position is that adams versus rice precludes to write  serve a good purpose i mean when you think about the fact that if you if something is not clearly steps you don't even have to determine whether or not there's a constitutional right you just go and seize not steps and by doing so yes book is no longer still not clearly established that's correct get over and if you do that every time when in this circuit would it ever be determined whether this is a right not a right well i would submit to you that a case in this post particular case whether you want to deal with the issue on the first prong i don't know that this is you know a case that's that's on appeal from the dismissal under nine hundred fifteen days they appropriate waited two to address that number one but number two you know my main lawyer there's nothing actually different in the next it's going to change that that's that's that's a valid point that's a valid point but of course here of course you've got issues dealing with the way it's been alleged and you know quite frankly the actual and he was basing it also on the pleadings from the two thousand and fifteen cases bottom line is he was being put in a holding cell in order to preserve the integrity of the of the investigation and was not  punishment and that was not in retaliation and in fact you know one of the interesting thing is he submitted a sworn affidavit together with his complaint this is a page as a teen of the joint appendix and paragraph where he actually says on the morning of september twelfth two thousand and fourteen captain susan duffy did place me on segregation to help maintain the integrity of an investigation i mean that's part of what was his complaint in this particular case and of course he specifically pled that as well in the two entitled to a qualified immunity and certainly it can be raised at this juncture of the case in fact one of the points of under section one thousand fifteen a is you can look at whether or not  defendant is entitled to immunity and courts do it all the time i see my time is up i haven't had a chance to address due process and equal protection to much of a degree we rely on our briefs on those particular arguments we would ask that the court  again opposing counsel has not contested that mr martin did not receive any of the review procedures required by state policies and therefore mr martin has properly pleaded a due process claim as to judge bears question related to equal protection although mr martin has pleaded that he was treated differently because he was placed in s m u and other prisoners were not it's clear here that there are other things going on this was an african american inmate placed in s by a white officer and was also as a lone it is not alleged in the complaint however we have provided this information in our briefing and based on a discussion that we have with our client that is clear but it is not in the significance  batteries were were sexual sexual in nature mr martin's previous complaint that was filed a joint appendix or in not his complaint excuse me the first inmate requests to join appendix page eleven it's clear from that that that was also that we've had with our client we do believe that there could be some sort of sexual purpose behind these touchings based on his sexual orientation but again that's unclear from the current record before i lived in the it was not your honor what we believe that with constantine and the other circuit courts there is overwhelming evidence that captain duffy were a person in her position a reasonable person in her position should have known that that she could not retaliate against mr martin for filing that grievance versus rice was an eighth amendment right to inform case where it be the issue was whether the inmate had a right to access the grievance procedures or had a right to have his grievance adjudicated in a certain way and that's that's a different right than what mr martin  prison grievance procedures before filing suit and mr martin properly pleaded a first member retaliating claim and the court dismissed the complaint as a whole therefore amendment claim was also dismissed and this court does have jurisdiction for these reasons we ask that this court reversed the lower court's dismissal of mr martin's complaint and remain the case for further proceedings