PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 16-6132

ANTHONY FRED MARTIN,

Plaintiff – Appellant,

v.

SUSAN DUFFY,

Defendant – Appellee.

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

David C. Norton, District Judge. (4:15-cv-04947-DCN)

Argued: March 21, 2017 Decided: June 1, 2017

Before GREGORY, Chief Judge, and WYNN and HARRIS, Circuit Judges.

Affirmed in part, reversed in part, and remanded by published opinion. Judge Wynn wrote 

the opinion, in which Chief Judge Gregory and Judge Harris joined.

ARGUED: Kylie Danelle Barnhart, WEST VIRGINIA UNIVERSITY COLLEGE OF 

LAW, Morgantown, West Virginia, for Appellant. Andrew Lindemann, DAVIDSON & 

LINDEMANN, P.A., Columbia, South Carolina, for Appellee. ON BRIEF: Lawrence D. 

Rosenberg, JONES DAY, Washington, D.C., for Appellant. Andrew Lindemann, 

DAVIDSON & LINDEMANN, P.A., Columbia, South Carolina, for Appellee.
2

WYNN, Circuit Judge:

Defendant Susan Duffy (“Duffy”), a captain at Perry Correctional Institution 

(“Perry CI”)—a state prison within the South Carolina Department of Corrections 

system—placed Plaintiff Anthony Fred Martin (“Martin”), an inmate at Perry CI, in 

segregation after Martin filed a grievance against a prison sergeant contending that the 

sergeant inappropriately touched him during a shakedown. Alleging that his placement in 

segregation violated his constitutional rights to freedom from retaliation for filing a 

grievance, equal protection, and due process, Martin filed a pro se complaint under 42

U.S.C. § 1983 against Duffy.

The district court dismissed Martin’s complaint for failure to state a claim upon 

which relief may be granted. We agree that Martin failed to state claims under the Equal 

Protection and Due Process Clauses. But construing Martin’s complaint liberally, as we 

must, we conclude that Martin pleaded sufficient facts to state a claim that Duffy violated 

Martin’s First Amendment rights by placing him in segregation as retaliation for filing a 

grievance. And we further conclude that Duffy is not entitled to qualified immunity from 

Martin’s retaliation claim because, under this Court’s precedent, it was clearly established 

at the time Duffy placed Martin in segregation that retaliating against an inmate for filing 

a grievance violates the inmate’s rights under the First Amendment. Booker v. S.C. Dep’t 

of Corr., 855 F.3d 533, 546 (4th Cir. 2017). Accordingly, we reverse, in part, the district 

court’s dismissal of Martin’s action.

I.

A.
3

On September 11, 2014, Martin filed an electronic message through the prison kiosk 

system, alleging that a prison sergeant inappropriately touched him during a shakedown. 

The next day, Duffy removed Martin from the general inmate population and placed him 

in a holding cell in the administrative building. Martin alleged that, once in holding, Duffy

“questioned [him] relentlessly about an informal resolution attempt of [his grievance 

alleging] inappropriate an[d] unwanted touching ‘battery’ against [the sergeant that Martin] 

had filed the day before.” J.A. 4. Martin also alleged that, following Duffy’s questioning, 

Duffy placed Martin in pre-hearing detention or “segregation” in an attempt to “maintain 

the integrity of [the] investigation” into Martin’s complaint against the sergeant. J.A. 10, 

13.

Subsequently, on November 18, 2014, Martin submitted a “Request to Staff 

Member” chit to Duffy complaining that “[Duffy] had no justifiable means to lock [him] 

away” and that “[i]f an investigation was or is being conducted, no one ha[d] spoken to 

[him] concerning [the] matter.” J.A. 15. In this same “Request to Staff Member” chit,

Martin accused Duffy of violating South Carolina Department of Corrections procedure by 

reprising against him “for [his] participating in an informal resolution” of his earlier 

grievance. J.A. 15. A month later, Duffy responded to Martin, stating that Martin had 

been placed under investigation by the Division of Investigations; that he was no longer 

under investigation; and that he was currently on the “yard list” to return to the general 

population. J.A. 15.

When prison officials arranged for Martin to return to the general inmate population 

on December 31, 2014, 110 days after his initial placement in segregation, Martin refused 
4

to reenter the general population and instead requested a transfer to another prison “as a 

resolution to the situation.” J.A. 5. Later that afternoon, a lieutenant filed an incident 

report recounting Martin’s “refus[al] to go to the yard per classifications” and citing Martin

for “[r]efusing to obey” orders. J.A. 16.

Nearly two weeks later, on January 16, 2015, Martin submitted an “Inmate Request” 

through the prison’s Offender Management System, reciting his interactions with Duffy, 

his allegation that Duffy placed him in segregation “for attempting to informally resolve 

an allegation of battery against [a sergeant] by way of the electronic KIOSK,” and his 

“attempt[] to informally resolve the issue” with no response. J.A. 10. In response to 

Martin’s “Inmate Request,” a prison official notified Martin that he was not under 

investigation; that officials believed his allegations had been found invalid by investigators; 

and that his refusal to return to the general population had resulted in a “pending charge.” 

J.A. 10. Consequently, on January 22, 2015, prison officials held a hearing regarding 

Martin’s refusal to return to the general population on December 31, 2014. Martin refused 

to attend the hearing. A hearing officer found Martin guilty of the charged offense and 

imposed various sanctions.

Approximately five months later, Martin received his requested transfer to Broad 

River Correctional Institution. According to Martin, during the 110 days that he remained 

in segregation, he never received a hearing regarding his detention, nor was he ever 

informed of the progress of any investigation related to the grievance that he had filed.

B.
5

On December 14, 2015, Martin, proceeding pro se, filed a complaint against Duffy

in the United States District Court for the District of South Carolina. In his complaint, 

Martin alleged that Duffy’s “unequal treatment” of him was “an act of reprisal, harassment 

and retaliation simply because [Martin] had attempted to informally resolve a grievance 

[Duffy] did not like.” J.A. 6. Martin also alleged that Duffy’s placement of Martin in 

segregation, when other inmates who had similarly “attempted to informally resolve 

grievances of inappropriate an[d] unwanted touching” had not been placed in segregation, 

violated his right to equal protection. J.A. 6. And Martin alleged two claims sounding in 

denial of procedural due process: (1) that his placement in segregation caused him to

generally “suffer[] an atypical and significant hardship” and (2) that his placement in 

segregation caused him to lose “good time credits for each month [he was in segregation] 

invalidly.”1

 J.A. 6, 10.

On December 30, 2015, a magistrate judge issued a report and recommendation 

concluding that Martin’s complaint should be summarily dismissed pursuant to 28 U.S.C. 

§ 1915(e)(2)(B). Noting its obligation to construe liberally Martin’s pro se complaint, the 

magistrate judge found that Martin failed to state cognizable equal protection and due 

process claims under 42 U.S.C. § 1983. In particular, the magistrate judge first found that 

Martin failed to state a due process claim because “South Carolina law confers no protected 

 1 Because Martin’s procedural due process claim concerning good time credits was 

alleged in documents attached to Martin’s complaint, we construe the complaint to include 

such a claim. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (stating that 

“[a] document filed pro se is ‘to be liberally construed’” (quoting Estelle v. Gamble, 429 

U.S. 97, 106 (1976))).
6

liberty interest upon . . . inmates from being classified or being placed in administrative 

segregation.” J.A. 34. And regarding Martin’s equal protection claim, the magistrate judge 

found that Martin failed to state a plausible claim because he “provide[d] no factual 

allegations to show that [Duffy] treated [Martin] differently than any other similarly 

situated inmate or that his placement in segregation . . . resulted from intentional or 

purposeful discrimination.” J.A. 35. The magistrate judge’s report and recommendation

did not explicitly address Martin’s retaliation claim, nor did it address Martin’s procedural 

due process claim arising from his alleged loss of the opportunity to earn good time credits.

Martin filed an objection to the report and recommendation on January 12, 2016. In 

his objection, Martin specifically requested to be allowed to proceed with discovery on his 

equal protection claim, again alleging that the unequal treatment he experienced “was the 

result of intentional and purposeful discrimination.” J.A. 38. And though Martin did not 

specifically set out his other claims in his objection, Martin attached an “Amended 

Complaint” to his objection restating his due process claim relating to his allegedly 

improper segregation without a hearing and his First Amendment retaliation claim, 

recounting the facts in a substantially similar manner as his first complaint.

After conducting a de novo review, the district court affirmed the magistrate judge’s 

report and recommendation in its entirety and dismissed Martin’s complaint without 

prejudice on January 20, 2016. Martin timely filed a notice of appeal.

II.

As an initial matter, we must determine whether this Court may properly exercise 

appellate jurisdiction over Martin’s case. Duffy argues that we lack jurisdiction to entertain 
7

Martin’s appeal for two reasons: first, because Martin waived his right to appellate review 

when he failed to file specific objections to the magistrate judge’s report and 

recommendation concluding that Martin failed to state claims upon which relief could be 

granted; and second, because the district court’s dismissal of Martin’s complaint without 

prejudice is not a final and appealable order. We will discuss both of these contentions in 

turn.

1.

A plaintiff is “deemed to have waived an objection to a magistrate judge’s report if 

[he] do[es] not present [his] claims to the district court.” United States v. Benton, 523 F.3d 

424, 428 (4th Cir. 2008) (“Failure to raise an argument before the district court typically 

results in the waiver of that argument on appeal.”). In order “to preserve for appeal an 

issue in a magistrate judge’s report, a party must object to the finding or recommendation 

on that issue with sufficient specificity so as reasonably to alert the district court of the true 

ground for the objection.” United States v. Midgette, 478 F.3d 616, 622 (4th Cir. 2007). 

Even so, when confronted with the objection of a pro se litigant, we must also be mindful 

of our responsibility to construe pro se filings liberally. See Erickson, 551 U.S. at 94.

As set out earlier, although Martin identified only his equal protection claim in his

objection to the magistrate’s report and recommendation, Martin also attached an 

“Amended Complaint” that restated all of his claims with the exception of his due process 

claim relating to his alleged loss of the opportunity to accrue good time credits. Because 

(1) we must liberally construe Martin’s objection and (2) Martin presented to the district 

court anew in the attached “Amended Complaint” his claims of First Amendment 
8

retaliation, equal protection, and due process relating to his segregation, we conclude 

Martin sufficiently alerted the district court that he believed the magistrate judge erred in 

recommending dismissal of those claims. However, because Martin did not incorporate 

his due process claim regarding his loss of the opportunity to earn good time credits in his 

objection or “Amended Complaint,” we find that Martin has waived the right to challenge 

on appeal the dismissal of that claim.

2.

We further conclude that the district court’s dismissal of Martin’s complaint without 

prejudice did not deprive this Court of jurisdiction to decide Martin’s appeal. “Article III 

courts are courts of limited jurisdiction, possessing only the authority granted by Congress 

and the Constitution.” United States ex rel. Lutz v. United States, 853 F.3d 131, 136 (4th 

Cir. 2017). “Generally, a party may only appeal an order that is final, that is, nothing 

remains for the district court to do except execute the judgment.” Id. at 136–37 (citing 28 

U.S.C. § 1291; Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 103 (2009)). Because 

“[a]n order which dismisses a complaint without expressly dismissing the action is 

[generally] not . . . an appealable order,” a plaintiff generally may not appeal the dismissal 

of his complaint without prejudice. Domino Sugar Corp. v. Sugar Workers Local Union 

392, 10 F.3d 1064, 1066 (4th Cir. 1993) (alterations in original) (internal quotation marks 

omitted) (quoting Ruby v. Sec’y of the U.S. Navy, 365 F.2d 385, 387 (9th Cir. 1966)). 

However, a district court’s dismissal of a plaintiff’s complaint without prejudice will not 

bar the plaintiff’s appeal when “the grounds for dismissal clearly indicate that ‘no 

amendment [to the complaint] could cure the defects in the plaintiff’s case.’” Id. at 1067 
9

(quoting Coniston Corp. v. Vill. of Hoffman Estates, 844 F.2d 461, 463 (7th Cir. 1988)). 

Thus, in assessing whether the district court’s dismissal of Martin’s complaint constitutes 

a final, appealable order, we must “evaluate the particular grounds for dismissal in 

[Martin’s] case to determine whether [Martin] could save his action by merely amending 

his complaint.” Id. at 1066–67; see also Chao v. Rivendell Woods, Inc., 415 F.3d 342, 345 

(4th Cir. 2005) (interpreting Domino Sugar to “require[ an appellate panel] to examine the 

appealability of a dismissal without prejudice based on the specific facts of the case in 

order to guard against piecemeal litigation and repetitive appeals”).

On the specific facts before us, we find that the district court’s dismissal order 

qualifies as an appealable order because Martin cannot save his action by merely amending 

his complaint. Regarding the First Amendment retaliation claim, in particular, Martin and 

Duffy agree that the district court did not address that claim in its order dismissing Martin’s 

complaint without prejudice. Although a district court’s failure to address a claim may 

foreclose appellate review of that claim, courts have found that an order that fails to 

explicitly address or dispose of all claims presented to the court may nevertheless qualify 

as a final, appealable order “[i]f the language used [in the order] is calculated to conclude 

all the claims before the district court,” Munson Transp., Inc. v. Hajjar, 148 F.3d 711, 714 

(7th Cir. 1998) (citing Armstrong v. Trico Marine, Inc., 923 F.2d 55, 58 (5th Cir. 1991)), 

or “where ‘the district court obviously was not trying to adjudicate fewer than all the 

pleaded claims,’” Perkin-Elmer Corp. v. Computervision Corp., 680 F.2d 669, 670 (9th 

Cir. 1982) (quoting Lockwood v. Wolf Corp., 629 F.2d 603, 608 (9th Cir. 1980)); see also
10

Moreau v. Harris County, 158 F.3d 241, 244 (5th Cir. 1998) (“A judgment reflecting an 

intent to dispose of all issues before the district court is final.”).

Although the magistrate judge did not analyze Martin’s retaliation claim within the 

framework this Court has set out for evaluating First Amendment retaliation claims, see 

infra Part III.A.1, the magistrate judge looked to this Court’s precedent in Adams v. Rice, 

40 F.3d 72 (4th Cir. 1994), for the proposition that “the Constitution creates no entitlement 

to grievance procedures or access to any such procedure voluntarily established by a state,” 

40 F.3d at 75, as well as Ashann-Ra v. Virginia, 112 F. Supp. 2d 559 (W.D. Va. 2000), in 

which a district court in this circuit held that “a prison official’s failure to comply with the 

state’s grievance procedure is not actionable under [Section] 1983,” 112 F. Supp. 2d at

569. The district court thereafter affirmed the magistrate judge’s analysis of the applicable 

case law.

When the district court rendered its decision, Adams had been construed by district 

courts in this circuit to preclude claims by inmates alleging prison officials retaliated 

against them for filing grievances. See, e.g., Pearson v. Simms, 345 F. Supp. 2d 515, 520 

(D. Md. 2003); Boblett v. Angelone, 942 F. Supp. 251, 255 (W.D. Va. 1996) (concluding 

that, under Adams, “a state grievance procedure does not confer any substantive right upon

prison inmates,” and holding “that retaliation for lodging complaints via . . . a grievance 

procedure does not state a [retaliation] claim . . . , which requires that the retaliation come 

in response to the exercise of a fundamental right”). Accordingly, we conclude that the 

magistrate judge’s invocation of Adams and its progeny—and the district court’s 

affirmance of the magistrate’s report and recommendation—made clear that the court 
11

intended its order to dispose of Martin’s First Amendment retaliation claim on grounds that 

Adams foreclosed such claims as a matter of law. Therefore, because the district court’s 

order “clearly preclude[d] amendment,” we may review Martin’s retaliation claim. Cf.

Goode v. Cent. Va. Legal Aid Soc’y, Inc., 807 F.3d 619, 630 (4th Cir. 2015) (holding that 

appellate panel lacked jurisdiction where district court’s “grounds for dismissal in this case 

did not clearly preclude amendment”).

Second, Martin’s reformulation of his equal protection claim in his “Amended 

Complaint” marked his third attempt to state a claim for an equal protection violation. In 

particular, in addition to his original complaint and the “Amended Complaint” that Martin 

attached to his objection, Martin earlier in 2015 filed a substantially similar action in the 

same district court—alleging virtually identical facts—that was likewise dismissed without 

prejudice. See Martin v. Duffy, No. 4:15–cv–2104, 2015 WL 11121380 (D.S.C. Aug. 3, 

2015) (affirming magistrate judge’s report and recommendation and dismissing Martin’s 

complaint without prejudice); Martin v. Duffy, No. 4:15–2104, 2015 WL 11121379, at *3 

(D.S.C. June 30, 2015) (recommending that complaint be dismissed without prejudice 

because Martin “fail[ed] to plead facts that would support a plausible equal protection 

claim”); see also Martin v. Duffy, 623 F. App’x 104 (4th Cir. 2015) (per curiam) 

(concluding that deficiencies in Martin’s complaint could be remedied by filing an 

amended complaint and dismissing appeal for lack of jurisdiction). Such repeated, 

ineffective attempts at amendment suggest that further amendment of the complaint would 

be futile. See United States ex rel. Willard v. Humana Health Plan of Tex., Inc., 336 F.3d 

375, 387 (5th Cir. 2003) (finding that allowing plaintiff a third chance to amend would 
12

prove futile where plaintiff had two opportunities to amend his complaint and there was no 

indication that he would be able to allege the necessary elements of a fraud claim). As 

district courts have thrice concluded that Martin has been unable to allege sufficient facts 

to establish a viable claim under the Equal Protection Clause, we find that Martin’s 

pleading deficiency cannot be cured by amendment of his complaint. Accordingly, we 

maintain jurisdiction to review the dismissal of Martin’s equal protection claim. See 

Domino Sugar, 10 F.3d at 1066.

Finally, regarding Martin’s procedural due process claim stemming from his 

placement in segregation, the magistrate judge dismissed that claim not because Martin 

failed to allege sufficient facts to state a plausible claim, but because, as a matter of law,

“South Carolina law confers no protected liberty interest upon . . . inmates from being 

classified or being placed in administrative segregation.” J.A. 34. And the district court 

summarily affirmed the magistrate judge’s report and recommendation, finding that the 

magistrate judge’s report accurately summarized the applicable law and Martin’s case. 

Therefore, by adopting the report and recommendation of the magistrate judge, the district 

court’s order “clearly preclude[d] [Martin] from amending his complaint to correct any 

pleading inadequacy” relating to that claim. See Goode, 807 F.3d at 628. Thus, we may 

also review Martin’s procedural due process claim.

In sum, the district court’s dismissal of Martin’s complaint without prejudice is a 

final and appealable order.

III.
13

On appeal, Martin argues that the district court erred in failing to address his First 

Amendment retaliation claim and in dismissing his remaining claims pursuant to 28 U.S.C. 

§ 1915(e)(2)(B)(ii), which provides that a “court shall dismiss [a prisoner’s] case at any 

time if the court determines that . . . the action or appeal . . . fails to state a claim on which 

relief may be granted.” “The standards for reviewing a dismissal under [Section] 

1915(e)(2)(B)(ii) are the same as those for reviewing a dismissal under Federal Rule of 

Civil Procedure 12(b)(6).” De’Lonta v. Angelone, 330 F.3d 630, 633 (4th Cir. 2003).

Therefore, we review a district court’s dismissal of a complaint pursuant to Section 

1915(e)(2)(B)(ii) de novo. Moore v. Bennette, 517 F.3d 717, 728 (4th Cir. 2008).

A complaint should not be dismissed 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.’” 

Veney v. Wyche, 293 F.3d 726, 730 (4th Cir. 2002) (quoting Edwards v. City of Goldsboro, 

178 F.3d 231, 244 (4th Cir. 1999)). Additionally, “[l]iberal construction of the pleadings 

is particularly appropriate where, as here, there is a pro se complaint raising civil rights 

issues.” Smith v. Smith, 589 F.3d 736, 738 (4th Cir. 2009) (alteration in original) (internal 

quotation marks omitted) (quoting Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978)). 

Nonetheless, “[w]e are not required . . . ‘to accept as true allegations that are merely 

conclusory, unwarranted deductions of fact, or unreasonable inferences.’” Veney, 293 F.3d 

at 730 (quoting Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001)).
14

With these principles in mind, we now turn to the question of whether Martin’s 

complaint sufficiently alleged cognizable claims for (1) First Amendment retaliation, 

(2) denial of equal protection, and (3) denial of procedural due process regarding his 

placement in segregation.

A.

1.

Martin first complains that Duffy violated his First Amendment rights by 

“repris[ing], harass[ing,] and retaliat[ing] [against him] simply because [he] had attempted 

to informally resolve a grievance.” J.A. 6. In order to state a colorable retaliation claim

under Section 1983, a plaintiff “must allege that (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.” Constantine v. Rectors & Visitors of George 

Mason Univ., 411 F.3d 474, 499 (4th Cir. 2005); see also Hill v. Lappin, 630 F.3d 468, 472 

(6th Cir. 2010) (citing Thaddeus-X v. Blatter, 175 F.3d 378, 394, 398 (6th Cir. 1999) (en 

banc)) (outlining substantially similar elements for a First Amendment retaliation cause of 

action by an inmate alleging retaliation for filing grievances against prison staff). Based 

on the facts Martin has alleged in his complaint, we conclude that Martin has stated a 

plausible First Amendment retaliation claim against Duffy.

First, Martin has sufficiently alleged that he engaged in protected First Amendment 

activity. Constantine, 411 F.3d at 499. “The First Amendment protects the right ‘to 

petition the Government for a redress of grievances,’” Kirby v. City of Elizabeth City, 388 
15

F.3d 440, 448 (4th Cir. 2004) (quoting U.S. Const. amend. I), and the Supreme Court has 

recognized that prisoners retain this constitutional right while they are incarcerated, Turner 

v. Safley, 482 U.S. 78, 84 (1987) (“[P]risoners retain the constitutional right to petition the 

government for the redress of grievances . . . .”). In his complaint, Martin stated that he 

“filed an electronic kiosk message against [a prison sergeant] for inappropriate and 

unwanted touching ‘battery.’” J.A. 4. Thus, by alleging that he filed a grievance against a

sergeant for battery, Martin has sufficiently pleaded that he engaged in protected conduct.2

 

See Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012) (“The filing of an inmate 

grievance is protected conduct.”); Herron v. Harrison, 203 F.3d 410, 415 (6th Cir. 2000)

(“An inmate has an undisputed First Amendment right to file grievances against prison 

officials on his own behalf.”).

Second, Martin has adequately pleaded that Duffy’s placement of Martin in 

segregation adversely affected his First Amendment rights. Constantine, 411 F.3d at 499. 

“[F]or 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 exercise of First Amendment rights.” Id. at 500 

 2 Though, in his appellate briefs, Martin grounds his retaliation claim in his First 

Amendment right to freedom of speech, “we note that [Martin] also generally alleged a 

violation of the First Amendment” in claiming that Duffy retaliated against him for filing 

a grievance, and that “courts are obligated to ‘liberally construe[]’ pro se complaints, 

‘however inartfully pleaded.’” Booker, 855 F.3d at 540 (quoting Erickson, 551 U.S. at 94). 

Accordingly, we decline to constrain our analysis of Martin’s claim to the Free Speech 

Clause of the First Amendment, but instead evaluate Martin’s claim as properly “rooted in 

the First Amendment’s Petition Clause.” Id.
16

(quoting Washington v. County of Rockland, 373 F.3d 310, 320 (2d Cir. 2004)). A 

plaintiff’s “actual response to the retaliatory conduct” is not dispositive of the question of 

whether such action would likely deter a person of ordinary firmness. Id. Here, Martin

alleged that, after he filed his grievance, Duffy “placed [him] inside of the administrative 

building’s holding cell and placed [him] on segregation after she questioned [him] 

relentlessly about an informal resolution attempt of [the grievance he] had filed the day 

before.” J.A. 4. Further, Martin alleged that he remained in segregation for 110 days

before being allowed to return to the general prison population. Certainly, “placing an 

inmate in administrative segregation ‘could deter a person of ordinary firmness from 

exercising his First Amendment rights.’” Herron, 203 F.3d at 416 (quoting Dunham-Bey 

v. Holden, 198 F.3d 244, 1999 WL 1023730, at *2 (6th Cir. Nov. 5, 1999) (unpublished 

table disposition)); see also Watison, 668 F.3d at 1115 (finding that placement in 

administrative segregation constitutes an adverse action); Allah v. Seiverling, 229 F.3d 220, 

225 (3d Cir. 2000) (finding that plaintiff’s confinement in administrative segregation 

resulting in reduced access to amenities and programs would allow a fact finder to conclude 

that placement in administrative segregation amounted to an adverse action). Accordingly, 

Martin has sufficiently alleged that Duffy took adverse action against him by confining 

him in segregation.

Lastly, we find that Martin has likewise sufficiently alleged that Duffy’s retaliatory 

act of placing him in segregation “was taken in response to the exercise of a constitutionally 

protected right.” Adams, 40 F.3d at 75. Again, in his complaint, Martin alleged that, “[o]n 

the morning of September 12, 2014, [Duffy] placed [him in segregation] after she 
17

questioned [him] relentlessly about an informal resolution attempt of [the grievance 

Martin] had filed the day before.” J.A. 4. Martin’s allegation that Duffy took this adverse 

action the day after he filed a grievance against a prison sergeant, “as an act of reprisal,” 

satisfies the third element necessary to state a retaliation claim. J.A. 5; see also Watison, 

668 F.3d at 1115 (finding that plaintiff alleged a sufficient connection between defendants’ 

retaliatory actions and plaintiff’s protected activity where plaintiff alleged defendants 

“took the[] adverse actions shortly after, and ‘[i]n retaliation’ for, [plaintiff’s] filing of 

grievances against [one of the defendants]” (second alteration in original)).

Accordingly, Martin has made out a prima facie claim of First Amendment 

retaliation, having alleged that he engaged in protected conduct by filing a grievance—i.e., 

petitioning for a redress of grievances; that he was subsequently placed in segregation—a 

placement that might deter a person of ordinary firmness from filing grievances; and that 

his protected activity and Duffy’s decision to place him in segregation were causally 

linked.

2.

Duffy argues that even if Martin pleaded sufficient facts to state a First Amendment 

retaliation claim, she is entitled to qualified immunity. Under Section 1915, courts are 

directed to “dismiss [a] case at any time if the court determines that . . . the action or 

appeal . . . seeks monetary relief against a defendant who is immune from such relief.” 28 

U.S.C. § 1915(e)(2)(B)(iii) (emphasis added). Because we “may affirm the dismissal by 

the district court on the basis of any ground supported by the record even if it is not the 

basis relied upon by the district court,” Ostrzenski v. Seigel, 177 F.3d 245, 253 (4th Cir. 
18

1999), and because Martin’s pleadings are adequately developed for us to decide the issue, 

we now turn to Duffy’s qualified immunity defense.

3

“[Q]ualified immunity protects government officials from liability for civil damages 

insofar as their conduct does not violate clearly established statutory or constitutional rights 

of which a reasonable person would have known.” Crouse v. Town of Moncks Corner, 848 

F.3d 576, 583 (4th Cir. 2017) (alteration in original) (internal quotation marks omitted) 

(quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)). In order for a plaintiff to 

overcome an official’s qualified immunity defense, the plaintiff must demonstrate “(1) that 

the official violated a statutory or constitutional right, and (2) that the right was ‘clearly 

established’ at the time of the challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 735 

(2011) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). An “official’s conduct 

violates clearly established law when, at the time of the challenged conduct, ‘[t]he contours 

of [a] right [are] sufficiently clear’ that every ‘reasonable official would have understood 

that what he is doing violates that right.’” Id. at 741 (alterations in original) (quoting 

Anderson v. Creighton, 483 U.S. 635, 640 (1987)). Thus, in determining whether a right 

 3 Martin contends that that it would be inappropriate for this Court to address 

Duffy’s “improperly preserved affirmative defense” because “Duffy has waived her claim 

of qualified immunity by failing to raise it prior to appeal.” Appellant’s Reply Br. at 24–

25. Martin’s argument is simply unavailing. Section 1915 prescribes pre-answer review

of a complaint. See Michau v. Charleston County, 434 F.3d 725, 727 (4th Cir. 2006) (“The 

magistrate judge conducted a pre-answer review of the complaints in accordance with the 

requirements of the PLRA and the [in forma pauperis] statute.”). Accordingly, Duffy

cannot be faulted for failing to preserve her defense when she was not yet required to file 

an answer and has not done so. Because Duffy has raised the defense on appeal, and such 

defense may be properly considered by this court under 28 U.S.C. § 1915(e)(2)(B)(iii), we 

will review Duffy’s qualified immunity defense.
19

is clearly established, “a court does not need to find ‘a case directly on point, but existing 

precedent must have placed the statutory or constitutional question beyond debate.’” 

Crouse, 848 F.3d at 583 (quoting al-Kidd, 563 U.S. at 741).

Beginning with the first prong, as discussed above, supra Part III.A.1, “the facts 

alleged [by Martin] show [Duffy’s] conduct violated a constitutional right,” Pearson, 555 

U.S. at 232 (internal quotation marks omitted) (quoting Saucier v. Katz, 533 U.S. 194, 201 

(2001))—namely, Martin’s First Amendment right to be free from retaliation for filing a

grievance. Thus, the only question that remains for this Court to decide is “whether the 

right at issue was ‘clearly established’ at the time of [Duffy’s] alleged misconduct.” Id.

In Booker, this Court held that an inmate’s “right to file a prison grievance free from 

retaliation was clearly established under the First Amendment” at least as far back in time 

as 2010—the year in which the defendant’s conduct in Booker took place. See 855 F.3d at 

536, 545. Because Martin’s First Amendment right to be free from retaliation by prison 

officials for filing a grievance was clearly established in 2010, see id. at 545, Duffy—

whose alleged conduct took place in 2014—is not entitled to qualified immunity. 

Accordingly, we conclude that the district court erred in dismissing Martin’s First 

Amendment retaliation claim.

B.

Martin next argues that the district court erred in dismissing his equal protection 

claim against Duffy. We disagree.

The Equal Protection Clause of the Fourteenth Amendment states that “[n]o State 

shall . . . deny to any person within its jurisdiction the equal protection of the laws.” U.S. 
20

Const. amend. XIV, § 1. “The purpose of the [E]qual [P]rotection [C]lause . . . is to secure 

every person within the State’s jurisdiction against intentional and arbitrary 

discrimination.” King v. Rubenstein, 825 F.3d 206, 220 (4th Cir. 2016) (internal quotation 

marks omitted) (quoting Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000)). “To 

succeed on an equal protection claim, a plaintiff must first demonstrate that he has been 

treated differently from others with whom he is similarly situated and that the unequal 

treatment was the result of intentional or purposeful discrimination.” Morrison v. 

Garraghty, 239 F.3d 648, 654 (4th Cir. 2001). Once the plaintiff makes this showing, “the 

court proceeds to determine whether the disparity in treatment can be justified under the 

requisite level of scrutiny.” Id. The plaintiff must plead sufficient facts to satisfy each of 

these requirements in order to state a cognizable equal protection claim. Veney, 293 F.3d 

at 731.

In his complaint, Martin alleged that the “unequal treatment” he had experienced 

“was the result of intentional and purposeful discrimination as an act of reprisal, 

harassment and retaliation simply because [he] had attempted to informally resolve a 

grievance [that Duffy] did not like.” J.A. 6 (emphasis added). And in his “Amended 

Complaint,” Martin similarly alleged that “[t]he unequal treatment was the result of 

intentional and purposeful discrimination, a reprisal, an act of harassment and retaliation 

simply because the plaintiff participated in the informal resolution of a grievance [Duffy] 

did not like.” J.A. 44 (emphasis added). Martin’s claim that Duffy treated him differently 

than other inmates who had filed similar grievances, in retaliation for Martin exercising 

his right to petition for redress of grievances, is, at its core, a First Amendment retaliation 
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claim. See Kirby, 388 F.3d at 447 (rejecting police officer’s claim that supervisors, by 

reprimanding officer after he testified against a co-worker in a grievance proceeding, 

denied officer equal protection because “[t]he claims based on the allegation that [the 

officer] was treated differently in retaliation for his speech are, at their core, free-speech 

retaliation claims”). Thus, as alleged, Martin’s “equal protection claim is best 

characterized as a mere rewording of his First Amendment retaliation claim.” Edwards, 

178 F.3d at 250; see supra Part III.A.1. In such circumstances, “[a] pure or generic 

retaliation claim . . . does not implicate the Equal Protection Clause.” Edwards, 178 F.3d 

at 250 (internal quotation marks omitted) (quoting Watkins v. Bowden, 105 F.3d 1344, 

1354 (11th Cir. 1997)).

In sum, because “all allegations in the complaint point to the conclusion that the 

[segregation] was in retaliation for [Martin’s] exercise of his right[] to [petition] under the 

First Amendment,” id., we conclude that the district court did not err in dismissing Martin’s 

equal protection claim.

C.

Martin also appeals the dismissal of his procedural due process claim premised on 

his placement in segregation without a hearing. We again affirm the district court’s 

dismissal of Martin’s claim, albeit on different grounds than those relied upon by the 

district court. See Ostrzenski, 177 F.3d at 253.

The Due Process Clause of the Fourteenth Amendment prohibits states from 

“depriv[ing] any person of life, liberty, or property, without due process of law.” U.S. 

Const. amend. XIV, § 1. “To state a procedural due process [claim], a plaintiff must [first] 
22

identify a protected liberty or property interest and [then] demonstrate deprivation of that 

interest without due process of law.” Prieto v. Clarke, 780 F.3d 245, 248 (4th Cir. 2015). 

Put differently, a prisoner claiming a violation of his right to procedural due process must 

show: (1) that there is a “state statute, regulation, or policy [that] creates such a liberty 

interest,” and (2) that “the denial of such an interest ‘imposes atypical and significant 

hardship on the inmate in relation to the ordinary incidents of prison life.’” Id. at 248–49 

(quoting Sandin v. Conner, 515 U.S. 472, 484 (1995)). An inmate who fails to satisfy these 

two requirements “cannot ‘invoke the procedural protections of the Due Process Clause.’” 

Id. at 248 (quoting Meachum v. Fano, 427 U.S. 215, 224 (1976)).

In his complaint, Martin alleged that he remained in segregation for 110 days

without receiving a hearing. Because South Carolina Department of Corrections procedure 

mandated review of Martin’s placement in pre-hearing detention or “segregation” within 

seventy-two hours of his initial placement and prescribed an initial detention of up to thirty 

days—with the option of a single thirty-day extension4

—the complaint adequately alleged 

the existence of a state policy creating a protected liberty interest. Incumaa v. Stirling, 791 

F.3d 517, 527 (4th Cir. 2015) (“[I]nmates must first establish that an interest in avoiding 

onerous or restrictive confinement conditions ‘arise[s] from state policies or regulations’ 

 4 Although Duffy maintains that Martin’s request for judicial notice of South 

Carolina Department of Corrections’ procedure is an improper attempt to supplement the 

record, we may properly take judicial notice of this policy as a public record under Federal 

Rule of Evidence 201(d). See Philips v. Pitt Cty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 

2009).
23

(e.g., a regulation mandating periodic review).” (second alteration in original) (quoting 

Prieto, 780 F.3d at 249)).

Turning to the second prong, we observe that “[w]hether confinement conditions 

are atypical and substantially harsh ‘in relation to the ordinary incidents of prison life’ is a 

‘necessarily . . . fact specific’ comparative exercise.’” Id. (quoting Beverati v. Smith, 120 

F.3d 500, 502, 503 (4th Cir. 1997)). Although Martin’s complaint included the conclusory 

allegation that he “suffered an atypical and significant hardship” as the result of his 

placement in segregation, J.A. 6, the complaint did not identify any conditions Martin 

experienced that gave rise to his alleged hardship. Such “[t]hreadbare recitals of the 

elements of a cause of action, supported by mere conclusory statements, do not suffice [to 

state a plausible claim to relief]. . . . While legal conclusions can provide the framework 

of a complaint, they must be supported by factual allegations.” Ashcroft v. Iqbal, 556 U.S. 

662, 678–79 (2009). Because Martin’s complaint does not include any factual allegations 

establishing that he experienced conditions during his temporary placement in segregation

that “were atypical and significantly harsh compared to [those of] the general population,” 

Incumaa, 791 F.3d at 528–29 (noting that the general prison population is the “touchstone” 

in cases where inmate was sentenced to confinement in the general population and later 

transferred to security detention), Martin failed to allege sufficient facts to state a plausible 

due process claim.

IV.

For the reasons stated herein, the judgment of the district court is
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AFFIRMED IN PART, REVERSED IN PART,

AND REMANDED.