UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 17-6493

CHARLES GREGG-EL, a/k/a Charles Gregg,

Plaintiff - Appellant,

v.

JOHN DOE, Health Services Director for the Virginia Department of Corrections; 

MR. WHITED, RNCB; Keen Mountain Correctional Center; R. SANDIFER, 

Institutional Ombudsman; Keen Mountain Correctional Center; J. KISER, Asst. 

Warden; Keen Mountain Correctional Center; R.C. MATHENA, Warden; Keen 

Mountain Correctional Center; L. FLEMING, Warden; Keen Mountain 

Correctional Center; DR. D’ALESSANDRO, Physician’s Assistant; Keen 

Mountain Correctional Center; M. STANFORD, RN; B. J. RAVIZEE, Institutional 

Ombudsman; Wallens Ridge State Prison; A. DAVID ROBINSON, Warden; 

Wallens Ridge State Prison; D. WELLS, RNCA; B. WALLS, Institutional 

Ombudsman; J. F. WALRATH, Warden River North Correctional Center; A. 

MULLINS, Correctional Major; River North Correctional Center,

Defendants - Appellees.

Appeal from the United States District Court for the Western District of Virginia, at 

Roanoke. Norman K. Moon, Senior District Judge. (7:16-cv-00038-NKM-RSB)

Submitted: October 31, 2018 Decided: January 3, 2019

Before GREGORY, Chief Judge, DIAZ and FLOYD, Circuit Judges.

Affirmed in part, vacated in part, and remanded by unpublished per curiam opinion.
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Bonnie Keith Green, THE GREEN FIRM, PLLC, Charlotte, North Carolina, for 

Appellant. Mark R. Herring, Attorney General, Victoria N. Pearson, Deputy Attorney 

General, Margaret Hoehl O’Shea, Assistant Attorney General, Toby J. Heytens, Solicitor 

General, Matthew R. McGuire, Principal Deputy Solicitor General, Michelle S. Kallen, 

Deputy Solicitor General Designate, OFFICE OF THE ATTORNEY GENERAL, 

Richmond, Virginia; Mary Foil Russell, SANDS ANDERSON, PC, Christiansburg, 

Virginia, for Appellees.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Charles Gregg-El appeals the district court’s order granting Defendants’ motions

to dismiss and for summary judgment in Gregg-El’s 42 U.S.C. § 1983 (2012) action. On 

appeal, Gregg-El challenges the dismissal of his First Amendment retaliation claim 

against A. Mullins and the dismissal of his Eighth Amendment deliberate indifference to 

serious medical needs claims against B. Walls, J.F. Walrath, and D. Wells.1

 For the 

reasons that follow, we affirm in part, vacate in part, and remand for further proceedings.

Gregg-El alleged that Mullins, a correctional officer at the prison where Gregg-El 

is an inmate, denied him an institutional job in retaliation for filing grievances. The 

district court granted summary judgment to Mullins after concluding that Gregg-El had 

no right to participate in the grievance procedure and that Mullins’ act of denying GreggEl a job would not deter a person of ordinary firmness from exercising his First 

Amendment rights. The district court further concluded that there was no material factual 

dispute as to causation because Mullins supplied evidence that Gregg-El was denied a job 

based on his status as a “sex offender” and his past disciplinary infractions.

After the district court issued its order, we held that, since 2010, the law has been 

clearly established that an inmate’s First Amendment right to petition the government is 

 1 Citing the continuing violation doctrine, Gregg-El also contests the district 

court’s conclusion that the statute of limitations barred his claims against the remaining 

Defendants. However, by neglecting to present this argument to the district court, GreggEl has failed to preserve this issue for our review. See In re Under Seal, 749 F.3d 276, 

285 (4th Cir. 2014) (“[A]bsent exceptional circumstances, we do not consider issues 

raised for the first time on appeal.” (ellipsis and internal quotation marks omitted)).
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violated when he is retaliated against for filing a grievance. Booker v. S.C. Dep’t of 

Corr., 855 F.3d 533, 546 (4th Cir. 2017), cert. denied, 138 S. Ct. 755 (2018). 

Accordingly, we conclude that Gregg-El satisfied the first element of a retaliation claim 

by presenting evidence that he engaged in protected speech by filing grievances. See 

Martin v. Duffy, 858 F.3d 239, 249 (4th Cir. 2017), cert. denied, 138 S. Ct. 738 (2018); 

Raub v. Campbell, 785 F.3d 876, 885 (4th Cir. 2015) (stating elements of First 

Amendment claim).

As for the adverse action element, although the district court concluded that the 

denial of an institutional job would not “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) (internal quotation marks omitted), we observe 

that our sister circuits have held otherwise, see Mack v. Warden Loretto FCI, 839 F.3d 

286, 297 (3d Cir. 2016); Williams v. Meese, 926 F.2d 994, 998 (10th Cir. 1991). We 

consider the reasoning of those decisions persuasive, and we therefore disagree with the 

district court and conclude that the denial of an institutional job can “chill a reasonable 

person’s exercise of First Amendment rights.” Constantine, 411 F.3d at 500-01.

With regard to causation, we conclude that a material factual dispute exists on this

issue. Evidence attached to the complaint shows that Gregg-El filed two grievances in 

September 2015 and that Mullins informed him the following month that he was not fit 

for the job he desired. Consequently, the temporal proximity between Gregg-El’s 

complaints and Mullins’ decision that Gregg-El was unqualified to work a particular job 
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may support an inference of causation. See Foster v. Univ. of Md.-E. Shore, 787 F.3d 

243, 253 (4th Cir. 2015).2

To refute the inference of causation, Mullins presented an affidavit stating that 

Gregg-El was not offered a job because “institutional policy” prevented “sex offenders” 

with “sex-related disciplinary convictions” from working in a particular building. But 

Mullins did not define the term “sex offender” for the purposes of that institutional policy 

or provide any written institutional policy on the topic, and it is unclear from the record 

whether Gregg-El is a “sex offender” within the meaning of the policy. Importantly, 

Gregg-El provided a prison employee’s statement that Gregg-El was not considered a sex 

offender. In addition, Gregg-El asserted that other inmates with similar disciplinary 

infractions were permitted to work at the prison. Thus, the record before us reflects that 

material factual disputes exist as to causation, rendering summary judgment 

inappropriate.

Turning to the Eighth Amendment deliberate indifference claims, Gregg-El 

generally alleges that Walls, Walrath, and Wells refused to provide adequate medical

treatment for his serious knee problems. However, based on our review of the record, we 

find no reversible error in the district court’s resolution of these claims, and we therefore 

 2 We have recognized that the analysis for causation is identical under § 1983 

and Title VII of the Civil Rights Act of 1964, as amended. See Causey v. Balog, 162 

F.3d 795, 804 (4th Cir. 1998).
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affirm this part of the order for the reasons stated by the district court. Gregg-El v. Doe, 

No. 7:16-cv-00038-NKM-RSB (W.D. Va. Mar. 10, 2017).3

Accordingly, we vacate the district court’s ruling on Gregg-El’s retaliation claim 

against Mullins and remand for further proceedings on that claim. We affirm the 

remainder of the district court’s order. 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 IN PART,

VACATED IN PART,

AND REMANDED

 3 Contrary to Gregg-El’s argument, we discern no abuse of discretion in the 

district court’s decision not to convert Wells’ motion to dismiss into a motion for 

summary judgment. See Wysocki v. Int’l Bus. Mach. Corp., 607 F.3d 1102, 1104 (6th 

Cir. 2010) (stating standard of review).