                                     PUBLISHED

                     UNITED STATES COURT OF APPEALS
                         FOR THE FOURTH CIRCUIT


                                     No. 15-7679


PATRICK L. BOOKER,

                   Plaintiff - Appellant,

            v.

SOUTH CAROLINA DEPARTMENT OF CORRECTIONS; SYLVIA JONES;
ANN SHEPPARD; THIERRY NETTLES,

                   Defendants - Appellees.



Appeal from the United States District Court for the District of South Carolina, at
Charleston. Mary G. Lewis, District Judge. (2:12-cv-01957-MGL)


Argued: December 6, 2016                                   Decided: April 28, 2017


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


Vacated and remanded by published opinion. Chief Judge Gregory wrote the majority
opinion, in which Judge Diaz joined. Judge Traxler wrote a dissenting opinion.


ARGUED: David Meir Zionts, COVINGTON & BURLING LLP, Washington, D.C.,
for Appellant. Michael D. Freeman, Sr., GRIFFITH, SHARP & LIIPFERT, LLC,
Beaufort, South Carolina, for Appellees. ON BRIEF: Robert A. Long, Jr.,
COVINGTON & BURLING LLP, Washington, D.C., for Appellant. Hillary G. Meyer,
GRIFFITH, SHARP & LIIPFERT, LLC, Beaufort, South Carolina, for Appellees.
GREGORY, Chief Judge:

       Patrick Booker, an inmate of the South Carolina Department of Corrections

(“SCDC”), brought a claim under 42 U.S.C. § 1983 alleging that he received a

disciplinary charge in retaliation for filing a prison grievance. The district court found

that Booker’s First Amendment right to be free from retaliation for filing a grievance was

not clearly established, and it accordingly held that Appellees were entitled to qualified

immunity and granted summary judgment in their favor. Because we find that Booker’s

right was clearly established, we vacate the judgment and remand to the district court for

further proceedings.



                                            I.

       Booker mailed a legal document to the Dorchester County Sherriff’s Office on

November 8, 2010, but it was returned to him at Lieber Correctional Institution because

he had not affixed the mailing address. Booker inspected the letter and noticed a slit

along the length of the envelope. According to Booker, the sergeant who returned the

mail to him indicated that the “confidentiality of its contents had been compromised.”

J.A. 18.

       After learning this information, Booker initiated the prison grievance process by

submitting a form known as a Request to Staff Member (“RSM”). The SCDC grievance

process consists of several steps.    Inmates must first try to “informally resolve a

complaint” by either discussing their complaint with the appropriate supervisor or, as

Booker did, by submitting an RSM form.           J.A. 52.   If informal resolution proves

                                            2
unsuccessful, inmates may submit a formal grievance to the Inmate Grievance

Coordinator within fifteen days of the incident (known as a Step 1 grievance), with

appeals to the SCDC’s central Grievance Branch (a Step 2 grievance) and eventually to

the South Carolina Administrative Law Court. The SCDC has a policy document titled

“Inmate Grievance System,” which provides that “[n]o inmate will be subjected to

reprisal, retaliation, harassment, or disciplinary action for filing a grievance or

participating in the resolution of a grievance.” J.A. 57–58.

       Booker’s RSM, which he addressed to the “Mailroom,” made its way to Appellee

Sylvia Jones, the mailroom supervisor at Lieber. J.A. 83–84. In his RSM, Booker

objected to the prison’s opening of and tampering with his legal mail and added that he

intended to pursue civil and criminal remedies if he found his mail meddled with again.

       Jones contends that in addition to filing the RSM, Booker verbally threatened her

regarding the mail incident—a fact that Booker disputes. What is undisputed is that

shortly after receiving the RSM, Jones submitted an “Incident Report” recommending

that Booker be charged with an “809” disciplinary offense of “Threatening to Inflict

Harm on/Assaulting an Employee and/or Members of the Public.” J.A. 71, 84. An 809

offense is a Level 2 Disciplinary Offense, which carries penalties of disciplinary

detention, loss of accrued good behavior time, and loss of visitation, employment,

television, and other privileges.    J.A. 67–68, 71.     A hearing was later held on the

disciplinary charge, at which Booker was found not guilty because he had made “legal

threats” against Jones, not physical threats. J.A. 77.



                                              3
       In June 2012, Booker, proceeding pro se, filed suit in state court against Jones,

SCDC, and two other SCDC employees, Ann Sheppard and Thierry Nettles. Booker

alleged, along with other state and federal claims, that Jones filed a false disciplinary

charge against him in retaliation for his submission of the RSM form. J.A. 18–19, 32.

Booker identified the First Amendment as the source of this claim: “Sylvia Jones, Ann

Sheppard and Thierry Nettles are liable unto Plaintiff in their individual/personal capacity

for violating Plaintiff’s First Amendment right to free speech and expression, and to be

free from wrongful interference and unlawful retaliation for the exercise of such right.”

J.A. 32. Appellees removed the case to federal court and later moved for summary

judgment.

       In its order granting the motion, the district court explained that a First

Amendment retaliation claim under § 1983 consists of three elements: (1) the plaintiff

engaged in constitutionally protected First Amendment activity, (2) the defendant took an

action that adversely affected that protected activity, and (3) there was a causal

relationship between the plaintiff’s protected activity and the defendant’s conduct. J.A.

115 (citing Suarez Corp. Indus. v. McGraw, 202 F.3d 676, 686 (4th Cir. 2000)). The

court assumed, without deciding, that Booker had engaged in constitutionally protected

activity when he filed the RSM form.         J.A. 113.    The district court still granted

Appellees’ motion, however, finding Booker had failed to produce sufficient evidence

that he had suffered “adverse action as a result of the 809 [disciplinary] charge.” J.A.

114.



                                             4
      In the first appeal, this Court vacated the district court’s summary judgment order

as to Booker’s claim that Jones violated his First Amendment rights by submitting a

disciplinary charge in retaliation for the grievance Booker submitted.     Booker v. S.

Carolina Dep’t of Corr., 583 F. App’x 43, 45 (4th Cir. 2014). Limiting our review to the

second element, as the district court did, we concluded that Booker had “produced

sufficient evidence that Jones’ conduct would likely deter prisoners of ordinary firmness

from exercising their First Amendment rights.” Id. at 44. We added that the evidence,

viewed in the light most favorable to Booker, supported a finding that the disciplinary

charge filed against Booker was false. Id. We did not decide whether Booker had

engaged in constitutionally protected conduct when he filed the RSM form. Id. at 44–45.

      On remand, Appellees again moved for summary judgment. The district court did

not reach the merits of Booker’s retaliation claim this time, instead determining that

Appellees were protected by qualified immunity. The district court specifically found

that a “prison inmate’s free speech right to submit internal grievances” was not clearly

established. J.A. 136. The court acknowledged that the right was “perhaps sufficiently

recognized in other federal circuits.” J.A. 136. But because “there has been no published

case law from the Supreme Court of the United States, the Fourth Circuit Court of

Appeals, or the Supreme Court of South Carolina that squarely establishes” the right at

issue, it concluded the right was not clearly established. J.A. 136–37. Accordingly, the

court held that Appellees deserved qualified immunity on the retaliation claim and

therefore granted their motion for summary judgment.

      Booker timely noticed this appeal.

                                           5
                                            II.

       We review de novo a grant of summary judgment on the basis of qualified

immunity. Durham v. Horner, 690 F.3d 183, 188 (4th Cir. 2012). Summary judgment is

proper “only if taking the evidence and all reasonable inferences drawn therefrom in the

light most favorable to the nonmoving party,” there are no genuine disputes of material

fact and the moving party is entitled to judgment as a matter of law. Henry v. Purnell,

652 F.3d 524, 531 (4th Cir. 2011) (en banc); see also Fed. R. Civ. P. 56(a).

       Qualified immunity protects officials “who commit constitutional violations but

who, in light of clearly established law, could reasonably believe that their actions were

lawful.”   Id. The doctrine weighs two important values—“the need to hold public

officials accountable when they exercise power irresponsibly and the need to shield

officials from harassment, distraction, and liability when they perform their duties

reasonably.”   Pearson v. Callahan, 555 U.S. 223, 231 (2009).          In conducting the

qualified immunity analysis, “our first task is to identify the specific right that the

plaintiff asserts was infringed by the challenged conduct.” Winfield v. Bass, 106 F.3d

525, 530 (4th Cir. 1997) (en banc). We then engage in a two-step inquiry, asking

“whether a constitutional violation occurred” and “whether the right violated was clearly

established” at the time of the official’s conduct. Melgar ex rel. Melgar v. Greene, 593

F.3d 348, 353 (4th Cir. 2010). Courts have discretion to take these steps in either order.

Pearson, 555 U.S. at 236.

       The “clearly established” prong lies at the heart of this case—we do not evaluate

the merits of Booker’s claim. A “right is clearly established only if its contours are

                                            6
sufficiently clear that ‘a reasonable official would understand that what he is doing

violates that right.’” Carroll v. Carman, 135 S. Ct. 348, 350 (2014) (quoting Anderson v.

Creighton, 483 U.S. 635, 640 (1987)). The unlawfulness of the official’s conduct must

be “apparent” in “light of pre-existing law.” Anderson, 483 U.S. at 640. To be clearly

established, “existing precedent must have placed the statutory or constitutional question

beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011).

       We must consider not only “specifically adjudicated rights,” but also “those

manifestly included within more general applications of the core constitutional principles

invoked.” Wall v. Wade, 741 F.3d 492, 502–03 (4th Cir. 2014) (quoting Pritchett v.

Alford, 973 F.2d 307, 314 (4th Cir. 1992)). In other words, defendants “can still be on

notice that their conduct violates established law even in novel factual circumstances,” so

long as the law provided “fair warning” that their conduct was unconstitutional. Hope v.

Pelzer, 536 U.S. 730, 741 (2002).

       In conducting the clearly established analysis, we first examine “cases of

controlling authority in [this] jurisdiction,” Amaechi v. West, 237 F.3d 356, 363 (4th Cir.

2001) (quoting Wilson v. Layne, 526 U.S. 603, 617 (1999))—that is, “decisions of the

Supreme Court, this court of appeals, and the highest court of the state in which the case

arose,” Owens ex rel. Owens v. Lott, 372 F.3d 267, 279 (4th Cir. 2004) (quoting Edwards

v. City of Goldsboro, 178 F.3d 231, 251 (4th Cir. 1999)). 1 We “ordinarily” need not look


       1
         District court opinions, on the other hand, are not decisions of “controlling
authority.” As the Supreme Court recently explained in an opinion concerning qualified
immunity, “[a] decision of a federal district court judge is not binding precedent in either
(Continued)
                                             7
any further than decisions from these courts. Id. But when “there are no such decisions

from courts of controlling authority, we may look to ‘a consensus of cases of persuasive

authority’ from other jurisdictions, if such exists.” Id. at 280 (emphasis added) (quoting

Wilson, 526 U.S. at 617).

       The Supreme Court, in an opinion authored by Chief Justice Rehnquist, articulated

that courts may rely on “a consensus of cases of persuasive authority” to determine

whether a “reasonable officer could not have believed that his actions were lawful.”

Wilson, 526 U.S. at 617. Since Wilson, the Supreme Court has reaffirmed that “qualified

immunity is lost when plaintiffs point either to ‘cases of controlling authority in their

jurisdiction at the time of the incident’ or to ‘a consensus of cases of persuasive

authority.’” Ashcroft, 563 U.S. at 742 (quoting Wilson, 526 U.S. at 617). 2 And in

evaluating whether a right is clearly established in a given circuit, the Supreme Court has



a different judicial district, the same judicial district, or even upon the same judge in a
different case.” Camreta v. Greene, 563 U.S. 692, 709 n.7 (2011) (quoting 18 J. Moore
et al., Moore’s Federal Practice § 134.02[1][d] (3d ed. 2011)). It is for this reason that
“[m]any Courts of Appeals [] decline to consider district court precedent when
determining if constitutional rights are clearly established for purposes of qualified
immunity.” Id. (citing Kalka v. Hawk, 215 F.3d 90, 100 (D.C. Cir. 2000) (Tatel, J.,
concurring in part and concurring in judgment) (collecting cases)).
       2
          Following the Supreme Court’s lead, several of our sister circuits, like us, have
recognized that courts may consider decisions from other circuits in the absence of
binding precedent. Werner v. Wall, 836 F.3d 751, 762 n.28 (7th Cir. 2016) (“We are not
alone in looking to trends in the decisional law of other jurisdictions once we are satisfied
that controlling precedent in our own circuit does not clearly establish a particular legal
right.”) (citing Cox v. Glanz, 800 F.3d 1231, 1247 (10th Cir. 2015); Morgan v. Swanson,
659 F.3d 359, 372 (5th Cir. 2011); Bame v. Dillard, 637 F.3d 380, 384 (D.C. Cir. 2011);
Wilson v. City of Boston, 421 F.3d 45, 56 (1st Cir. 2005); Turner v. Ark. Ins. Dep’t, 297
F.3d 751, 755 (8th Cir. 2002); Trulock v. Freeh, 275 F.3d 391, 407 (4th Cir. 2001)).

                                             8
looked to precedent from other circuits. See, e.g., Pearson, 555 U.S. at 244 (considering

decisions from “three Federal Courts of Appeals” and noting officers “were entitled to

rely on these cases, even though their own Federal Circuit had not yet ruled on”

constitutional issue); Brosseau v. Haugen, 543 U.S. 194, 200–01 (2004) (discussing

Sixth, Seventh, and Eighth Circuit cases in finding right not clearly established in Ninth

Circuit).



                                            III.

                                             A.

       Before we apply these rules to the instant case, we must first define the right at the

“appropriate level of specificity,” Wilson, 526 U.S. at 615, keeping in mind that the

Supreme Court has cautioned against defining the right at too “high [a] level of

generality,” Ashcroft, 563 U.S. at 742. See also id. (noting, for example, the “general

proposition” that whether “an unreasonable search or seizure violates the Fourth

Amendment is of little help in determining whether the violative nature of particular

conduct is clearly established”).

       At the outset, we preempt a possible point of confusion—Booker did not allege in

his complaint that he has an absolute right to file prison grievances pursuant to the First

Amendment. Rather, Booker alleged that he has a First Amendment right to be free from




                                             9
retaliation when he does file a grievance pursuant to an existing grievance procedure. 3

See J.A. 32.

       More particularly, Booker asserts that this right is rooted in the First Amendment’s

Petition Clause, which guarantees individuals the right “to petition the Government for a

redress of grievances.” U.S. Const. amend. I. Booker contends that an inmate’s right to

petition is violated when he is retaliated against for filing a grievance. Appellees suggest

in passing that we should not examine whether the right was established under the

Petition Clause, apparently referencing the district court’s refusal to consider the right to

petition. With minimal explanation, the district court limited its analysis to the Free

Speech Clause, stating that an “inmate’s free speech right to submit internal grievances”

was the right “pressed by the Plaintiff throughout this litigation.” J.A. 136.

       The district court should not have limited itself so.       To the extent the court

considered only the free speech right because Booker mentioned that clause in his pro se

complaint, we note that Booker also generally alleged a violation of the First

Amendment, J.A. 31, and that courts are obligated to “liberally construe[]” pro se

       3
          Appellees quibble with the right at issue. They contend that the alleged
retaliation was in response to Booker’s submission of an RSM form—not a grievance.
This is simply a matter of semantics. Inmates in the SCDC submit RSM forms to express
grievances and initiate the grievance process, and this Court previously classified
Booker’s submission of the RSM form as “Booker’s grievance,” Booker, 583 F. App’x
at 44. The Ninth Circuit rejected a near-identical distinction in Brodheim v. Cry, where
the defendants suggested that an inmate could not bring a First Amendment retaliation
claim because the alleged retaliation was in response to the inmate’s filing of a document
called an “interview request form.” 584 F.3d 1262, 1271 n.4 (9th Cir. 2009). The court
noted that the interview request form was “part of the grievance process” and held that
the “applicability of the constitutional right to redress of grievances does not hinge on the
label the prison places on a particular complaint.” Id.

                                             10
complaints, “however inartfully pleaded,” Erickson v. Pardus, 551 U.S. 89, 94 (2007)

(quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). 4 Booker also directly argued to the

district court that “[i]nstead of analyzing the first element to a First Amendment

retaliation claim in the context of [] public employee speech, the [magistrate judge]

should have realized that the facts in this case related more to a deprivation of Plaintiff’s

right to petition the government.” Pl.’s Objections to Report and Recommendation, Dist.

Ct. ECF No. 160, at 5 (May 6, 2015). Booker’s detailed factual allegations and his

reference to the First Amendment provide a more-than-sufficient basis for us to analyze

whether the right was clearly established under the Petition Clause.

                                             B.

       The clearly established inquiry asks whether the state of the law gave a reasonable

prison official “fair warning” that retaliating against an inmate who files a prison

grievance was unconstitutional.

       It is “well established” in this Circuit that a “public official may not misuse his

power to retaliate against an individual for the exercise of a valid constitutional right.”

Trulock, 275 F.3d at 405. Thus, if an inmate exercises his First Amendment right when

he files a prison grievance, retaliation against him for doing so is unconstitutional. The

pertinent question in this appeal, then, is whether it was clearly established that an inmate


       4
         Indeed, courts have liberally construed complaints even where pro se plaintiffs
do not reference any source of law, see Hodge v. Gansler, 547 F. App’x 209, 210 n.1 (4th
Cir. 2013) (construing claim for “racial profiling” as equal protection claim) (citing
Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978)), or where they cite the wrong part
of the Constitution, see Ambrose v. Roeckeman, 749 F.3d 615, 618 (7th Cir. 2014).

                                             11
exercises a First Amendment right to petition for redress of grievances when he files a

prison grievance.     Framed differently, we must determine whether it was clearly

established that an inmate’s right to petition is violated when he is retaliated against for

filing a grievance.

       As noted, the first step is to consider cases of controlling authority in this

jurisdiction. See Owens, 372 F.3d at 279–80. We thus start with Supreme Court, Fourth

Circuit, and Supreme Court of South Carolina decisions that have addressed the asserted

right. The parties do not contest the district court’s finding that no decision from the

United States Supreme Court or Supreme Court of South Carolina explicitly discusses the

right. The parties do dispute, however, whether our Court has addressed it. Booker

contends that the Fourth Circuit has not discussed in a published opinion whether inmates

have a First Amendment right to be free from retaliation for filing grievances. For their

part, Appellees appear to agree that this Court has never explicitly considered this right.

Nevertheless, they contend that our decision in Adams v. Rice, 40 F.3d 72 (4th Cir. 1994),

resolves the clearly established analysis in their favor. 5 They understand Adams to

suggest that inmates do not exercise any constitutional right (under the First Amendment

or otherwise) when they file a prison grievance. See Appellees’ Br. 13–14; see also id. at




       5
          It is worth noting the change in Appellees’ position. Earlier in the litigation,
prior to the first appeal, they agreed with Booker that “it has been clearly established that
a prison official may not retaliate against an inmate for . . . complaining about a prison
official’s conduct.” Defs.’ Reply to Pl.’s Response in Opp. to Mot. for S.J., Dist. Ct. ECF
No. 48, at 8 (Jan. 17, 2013) (emphasis added).

                                             12
17 (arguing that inmates exercise First Amendment right to petition by accessing the

courts, not by filing grievances).

       Adams does not stand for—or even imply—that proposition, however. There, an

inmate claimed that when he requested protective custody, the prison officials retaliated

against him by, among other things, denying him access to the prison’s grievance

process. Adams, 40 F.3d at 75. On appeal, the plaintiff “recast[] his protective custody

request as an exercise of a ‘right to inform’ prison officials of dangerous conditions”

incident to the Eighth Amendment. Id. In other words, Adams asserted he had a

constitutional right “to a particular grievance procedure.” Id. This Court held that the

plaintiff had not exercised any such right by requesting protective custody. Id. We went

on to state that “the Constitution creates no entitlement to grievance procedures or access

to any such procedure.” Id. (citing Flick v. Alba, 932 F.2d 728, 729 (8th Cir. 1991) (per

curiam); Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988) (per curiam)).

       Adams establishes a clear rule: inmates have no constitutional entitlement or due

process interest in access to a grievance procedure. An inmate thus cannot bring a § 1983

claim alleging denial of a specific grievance process, for example. But Adams is entirely

silent on the issue in this case—whether an inmate’s First Amendment right is violated

when he is retaliated against for submitting a grievance pursuant to an existing grievance

procedure. That a prison is not required under the Constitution to provide access to a

grievance process does not mean that prison officials who retaliate against inmates for

filing grievances do not violate the Constitution.



                                             13
       As the Eighth Circuit explained nearly three decades ago, there is a very critical

distinction between the right of access or entitlement to a grievance process and the right

to be free from retaliation for filing a grievance:

       Prison officials cannot properly bring a disciplinary action against a
       prisoner for filing a grievance that is determined by those officials to be
       without merit anymore than they can properly bring a disciplinary action
       against a prisoner for filing a lawsuit that is judicially determined to be
       without merit. That the Constitution does not obligate the state to establish
       a grievance procedure is, we believe, of no consequence here . . . .

Sprouse v. Babcock, 870 F.2d 450, 452 (8th Cir. 1989) (emphasis added). Indeed, the

Eighth Circuit recognizes that (1) an inmate possesses a First Amendment right to be free

from retaliation for filing a grievance, id., while simultaneously recognizing that (2) an

inmate does not have a due process “liberty interest in access to [a grievance] procedure,”

Flick, 932 F.2d at 729.

       The Eighth Circuit is not alone in finding that although inmates do not have a

constitutional entitlement to and/or due process interest in accessing a grievance

procedure, they have a First Amendment right to be free from retaliation when they do

file. Compare Geiger v. Jones, 404 F.3d 371, 374 (5th Cir. 2005) (finding no liberty

interest in grievance procedure), with Bibbs v. Early, 541 F.3d 267, 272 (5th Cir. 2008)

(recognizing First Amendment retaliation right); compare Mann v. Adams, 855 F.2d 639,

640 (9th Cir. 1988) (finding inmates have “no legitimate claim of entitlement to a

grievance procedure”), with Hines v. Gomez, 108 F.3d 265, 269 (9th Cir. 1997)

(recognizing First Amendment retaliation right); compare Bingham v. Thomas, 654 F.3d

1171, 1177 (11th Cir. 2011) (holding that inmates have “no constitutionally-protected


                                              14
liberty interest in access to [grievance] procedure”), with Boxer X v. Harris, 437 F.3d

1107, 1112 (11th Cir. 2006) (recognizing First Amendment retaliation right). Like our

sister circuits, we see no inconsistency between these distinct legal principles.

       In short, Adams concerns whether inmates have a constitutional entitlement to or

liberty interest in accessing grievance procedures. It says nothing about whether a prison

official violates an inmate’s First Amendment rights by retaliating against the inmate for

submitting a grievance. Therefore, contrary to Appellees’ suggestion, Adams does not

speak to the right at issue.      As such, neither party has cited cases from courts of

controlling authority—the Supreme Court, this Court, or the Supreme Court of South

Carolina—that explicitly address an inmate’s First Amendment right to be free from

retaliation for filing a prison grievance.

       To be sure, as discussed at oral argument, there are unpublished opinions in this

Circuit that reference Adams and/or directly address the right in question. One such

decision misconstrued Adams to preclude an inmate from bringing a First Amendment

claim alleging retaliation in response to his verbal complaints to prison officials. See

Daye v. Rubenstein, 417 F. App’x 317, 319 (4th Cir. 2011). Others properly applied

Adams. See, e.g., Cameron v. Bonney, 523 F. App’x 969, 970 (4th Cir. 2013) (applying

Adams to reject inmate’s claim that his constitutional rights were violated when he was

denied access to a grievance form). And still more unpublished decisions found that




                                             15
inmates can bring a First Amendment claim alleging retaliation for filing a grievance. 6

See, e.g., Wright v. Vitale, 937 F.2d 604, 1991 WL 127597, at *1 (4th Cir. 1991)

(unpublished table opinion); Gullet v. Wilt, 869 F.2d 593, 1989 WL 14614, at *2 (4th Cir.

1989) (unpublished table opinion). But because these unpublished opinions “are not even

regarded as binding precedent in our circuit,” as this Court sitting en banc has explained,

they “cannot be considered in deciding whether particular conduct violated clearly

established law for purposes of adjudging entitlement to qualified immunity.” Hogan v.

Carter, 85 F.3d 1113, 1118 (4th Cir. 1996) (en banc).

       We therefore agree with the district court’s conclusion that no published decision

from the Supreme Court, this Court, or the Supreme Court of South Carolina squarely

addresses whether filing a grievance is protected First Amendment conduct.

       The district court, after determining there were no binding cases that squarely

established the specific First Amendment right, concluded that the right was not clearly

established. J.A. 137. But the clearly established inquiry was not complete: as this

Court has stated, and as Booker recognizes, the “absence of controlling authority holding

identical conduct unlawful does not guarantee qualified immunity.” Owens, 372 F.3d at

279. The district court failed to consider whether, despite the lack of directly on-point,


       6
          We have also found, in an unreported decision, that an inmate could bring a
claim alleging he was transferred in retaliation for sending a letter to the mother of a
fellow inmate who was severely beaten. Moore v. Bennette, 97 F. App’x 405, 406 (4th
Cir. 2004). The retaliation claim was later acknowledged in a published decision, see
Moore v. Bennette, 517 F.3d 717, 724 (4th Cir. 2008), and eventually evaluated by the
district court as a First Amendment retaliation claim, see Moore v. Bennette, 777 F. Supp.
2d 969, 982–85 (E.D.N.C. 2011).

                                            16
binding authority, the right was clearly established based on general constitutional

principles or a consensus of persuasive authority. We now proceed to that task.

                                             C.

       In the absence of controlling authority that specifically adjudicates the right in

question, a right may still be clearly established in one of two ways. A right may be

clearly established if “a general constitutional rule already identified in the decisional law

[] appl[ies] with obvious clarity to the specific conduct in question.” Hope, 536 U.S. at

741 (quoting United States v. Lanier, 520 U.S. 259, 271 (1997)); see also Owens, 372

F.3d at 279 (stating that a right may be clearly established if it is “manifestly apparent

from broader applications of the constitutional premise in question”). A right may also

be clearly established based on a “‘consensus of cases of persuasive authority’ from other

jurisdictions.” Owens, 372 F.3d at 280 (quoting Wilson, 526 U.S. at 617). Here, Booker

argues that his First Amendment right was clearly established in both ways.

       Arguably, the prohibition on retaliating against inmates for filing grievances was

obviously unconstitutional given longstanding principles articulated in controlling

authority. It is beyond dispute that prison officials cannot retaliate against inmates for

exercising a constitutional right. Trulock, 275 F.3d at 405. And Booker presents a

logical and compelling argument that, in light of binding Supreme Court precedent, he

exercised his constitutional right to petition the government for redress of grievances




                                             17
when he filed an administrative grievance seeking redress for what he believed was the

improper handling of his legal mail. 7

       In addition to Supreme Court precedent, this Court has long held that prison

officials may not retaliate against prisoners for exercising their right to access the courts,

Hudspeth v. Figgins, 584 F.2d 1345, 1348 (4th Cir. 1978), which is a component of the

right to petition for redress of grievances, Hudson v. Palmer, 468 U.S. 517, 523 (1984).

Given the close relationship between an inmate filing a grievance and filing a lawsuit—

indeed, the former is generally a prerequisite for the latter—our jurisprudence provided a

strong signal that officials may not retaliate against inmates for filing grievances.

       Regardless of whether Booker’s right was obvious or “manifestly apparent” from

broader principles in the decisional law, we find that it was clearly established based on a

robust “consensus of persuasive authority.” The Second, Sixth, Seventh, Eighth, Ninth,

Eleventh, and D.C. Circuits have all recognized in published decisions that inmates

possess a right, grounded in the First Amendment’s Petition Clause, to be free from

retaliation in response to filing a prison grievance. The Second Circuit, for instance,

       7
         The Supreme Court has long held that prisoners “retain the constitutional right to
petition the government for the redress of grievances.” Turner v. Safley, 482 U.S. 78, 84
(1987). This right “advance[s] personal expression,” Borough of Duryea v. Guarnieri,
564 U.S. 379, 388 (2011), and “extends to all departments of the Government,” including
administrative agencies, California Motor Transp. Co. v. Trucking Unlimited, 404 U.S.
508, 510 (1972). Read together, Booker suggests it is clear that an inmate exercises the
petition right when he files a grievance. The Supreme Court has further stated that
prisoners retain “protection from arbitrary state action even within the expected
conditions of confinement. They may invoke the First and Eighth Amendments and the
Equal Protection Clause of the Fourteenth Amendment where appropriate, and may draw
upon internal prison grievance procedures and state judicial review where available.”
Sandin v. Conner, 515 U.S. 472, 487 n.11 (1995) (emphasis added).

                                             18
recognized that an inmate can bring a First Amendment right to petition claim when

prison officials “intentionally file[] false disciplinary charges against him in retaliation

for his cooperation with a state administrative investigation of alleged incidents of inmate

abuse at the prison.” Franco v. Kelly, 854 F.2d 584, 589 (2d Cir. 1988). The court later

recognized the right in the context of retaliation against inmates for filing grievances.

Gayle v. Gonyea, 313 F.3d 677, 682 (2d Cir. 2002) (“An allegation that a prison official

filed false disciplinary charges in retaliation for the exercise of a constitutionally

protected right, such as the filing of a grievance, states a claim under § 1983.”) (citing

Franco, 854 F.3d at 589–90). The Sixth, Seventh, Eighth, Ninth, Eleventh, and D.C.

Circuits have likewise recognized that inmates possess a First Amendment petition right

to be free from retaliation for filing grievances. Herron v. Harrison, 203 F.3d 410, 414

(6th Cir. 2000) (recognizing claim where inmate alleged that prison officials

“impermissibly retaliated against him for exercising his First Amendment right to file

grievances and petition the courts for redress”); Powers v. Snyder, 484 F.3d 929, 933 (7th

Cir. 2007) (recognizing claim where inmate alleged he was retaliated against for “filing

grievances against the prison” and noting “[s]uch retaliation violates a prisoner’s right,

founded on the First Amendment, to petition government for the redress of grievances”);

Dixon v. Brown, 38 F.3d 379, 379 (8th Cir. 1994) (holding that “filing of a disciplinary

charge becomes actionable if done in retaliation for the inmate’s filing of a grievance”

and stating that such conduct “strikes at the heart of an inmate’s constitutional right to

seek redress of grievances”); Brodheim v. Cry, 584 F.3d 1262, 1266, 1269–72 (9th Cir.

2009) (recognizing First Amendment petition right where inmate alleged retaliation for

                                            19
filing grievances); Boxer X v. Harris, 437 F.3d 1107, 1112 (11th Cir. 2006) (“First

Amendment rights to free speech and to petition the government for a redress of

grievances are violated when a prisoner is punished for filing a grievance . . . .”);

Toolasprashad v. Bureau of Prisons, 286 F.3d 576, 584–85 (D.C. Cir. 2002) (recognizing

that prisoners “undoubtedly” exercise First Amendment petition right when filing

grievances and stating that prison “officials may not retaliate against prisoners for filing

grievances”).

       Even more, the Third, Fifth, and Tenth Circuits have recognized an inmate’s right

to be free from retaliation for filing a grievance under the First Amendment (albeit

without referencing a particular clause). Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir.

2003) (“[Inmate’s] allegation that he was falsely charged with misconduct in retaliation

for filing complaints against Officer Wilson implicates conduct protected by the First

Amendment.”); Bibbs v. Early, 541 F.3d 267, 271 (5th Cir. 2008) (recognizing First

Amendment retaliation claim where official filed a disciplinary report “following an

inmate’s filing of a grievance”); Williams v. Meese, 926 F.2d 994, 998 (10th Cir. 1991)

(“[T]he district court erred in dismissing plaintiff’s claim that that he was denied

particular job assignments or was transferred from one job to another in retaliation for

filing administrative grievances or the present civil rights action.      Again, although

plaintiff has no right to a job or to any particular assignment, prison officials cannot

punish plaintiff for exercising his first amendment rights . . . .”).

       Given the decisions from nearly every court of appeals, we are compelled to

conclude that Booker’s right to file a prison grievance free from retaliation was clearly

                                               20
established under the First Amendment.        Consistent with fundamental constitutional

principles and common sense, these courts have had little difficulty concluding that

prison officials violate the First Amendment by retaliating against inmates for filing

grievances.    Rarely will there be such an overwhelming consensus of authority

recognizing that specific conduct is violative of a constitutional right. The unanimity

among our sister circuits demonstrates that the constitutional question is “beyond

debate,” and therefore we find that the right at issue was clearly established.

       Appellees do not dispute this consensus among the federal appellate courts. They

instead argue that there is a “body of case law within the Fourth Circuit that specifically

holds prisoners have no constitutional right to file a grievance.” Appellees’ Br. 13. This

“body of case law” consists of three published district court opinions from the Western

District of Virginia, two of which were issued by the same district judge and do not even

mention the First Amendment. See id. at 14. All three decisions erroneously rely on

Adams in rejecting an inmate’s claim that he was retaliated against for filing grievances.

See, e.g., Brown v. Angelone, 938 F. Supp. 340, 346–47 (W.D. Va. 1996).

       These district court decisions do not alter our conclusion that the right was clearly

established. First, it is unclear whether we should include district court opinions in the

balancing of “persuasive authority.”     As the Supreme Court has remarked, “[m]any

Courts of Appeals [] decline to consider district court precedent when determining if

constitutional rights are clearly established for purposes of qualified immunity.”

Camreta, 563 U.S. at 709 n.7. The Court went on, “[o]therwise said, district court

decisions—unlike those from the courts of appeals—do not necessarily settle

                                             21
constitutional standards or prevent repeated claims of qualified immunity.” Id. Given

that published district court opinions, like unpublished opinions from our Court, have no

precedential value, it follows that we should not consider them. But even if we classify

published district court opinions as relevant “persuasive authority,” they are “no match

for the Circuit precedents.” Hope, 536 U.S. at 747. When weighed against the circuit

precedents, there is still an overwhelming “consensus of persuasive authority” that

inmates possess a First Amendment right to be free from retaliation for filing a grievance.

       Our “conclusion that ‘a reasonable person would have known,’ Harlow [v.

Fitzgerald, 457 U.S. 800, 818 (1982)], of the violation is buttressed by” the South

Carolina Department of Correction’s internal policies. Hope, 536 U.S. at 744. Although

officials “do not lose their qualified immunity merely because their conduct violates

some statutory or administrative provision,” Davis v. Scherer, 468 U.S. 183, 194 (1984),

the Supreme Court has analyzed prison regulations in combination with case law to

determine whether an individual had fair warning, see Hope, 536 U.S. at 741–45 (relying

on binding precedent, Alabama Department of Corrections regulation, and Department of

Justice report in finding conduct violated clearly established right); see also Furnace v.

Sullivan, 705 F.3d 1021, 1027 (9th Cir. 2013) (stating that “regulations governing the

conduct of correctional officers are also relevant in determining whether an inmate’s right

was clearly established”) (quoting Treats v. Morgan, 308 F.3d 868, 875 (8th Cir. 2002)

(citing Hope, 536 U.S. at 743–744)); Okin v. Vill. of Cornwall-On-Hudson Police Dep’t,

577 F.3d 415, 433–34 (2d Cir. 2009).



                                            22
       Here, the SCDC’s detailed policy document concerning the “Inmate Grievance

System” 8 expressly provides that “[n]o inmate will be subjected to reprisal, retaliation,

harassment, or disciplinary action for filing a grievance or participating in the resolution

of a grievance.” J.A. 57–58. The record further indicates that this prohibition was

communicated to prison officials: “As part of the Department orientation program, all

newly hired employees will receive written and/or oral explanations of the Department’s

grievance policy/procedure by a representative of the Inmate Grievance Branch.” J.A.

57. Again, the fundamental inquiry for purposes of qualified immunity is whether a

reasonable official in Jones’s position had “fair warning” that the alleged conduct was

unconstitutional. Hope, 536 U.S. at 741. The unequivocal language of SCDC’s own

policies provides additional support for our finding that Jones had such warning here.

       In sum, given the authority discussed above, we conclude that a reasonable prison

official had fair warning that retaliating against an inmate who filed a prison grievance

was unlawful. Because an inmate’s First Amendment right to be free from retaliation for

filing a grievance was clearly established, we find that Appellees are not entitled to




       8
         We treat the “Inmate Grievance System” document as a prison regulation. As
the South Carolina Court of Appeals recently explained with respect to this exact
document, “[a]lthough SCDC’s statements concerning the inmate grievance system are
within a document entitled ‘SCDC Policy/Procedure,’ they are ‘binding norms’ and, thus,
more like rules or regulations . . . than they are true policy statements.” Ackerman v. S.
Carolina Dep’t of Corr., 782 S.E.2d 757, 761 n.6 (S.C. Ct. App. 2016). And this Court
has previously classified SCDC policy statements as regulations. See Hines v. S.
Carolina Dep’t of Corr., 148 F.3d 353, 358 (4th Cir. 1998) (classifying SCDC
“Grooming Policy” as “neutral and generally applicable regulation”).

                                            23
qualified immunity on that basis and therefore the district court erred in granting their

motion for summary judgment.



                                           IV.

      For the foregoing reasons, the judgment of the district court is vacated, and we

remand for further proceedings consistent with this opinion.

                                                           VACATED AND REMANDED




                                           24
TRAXLER, Circuit Judge, dissenting:

       Relying on decisions from other circuits, the majority concludes that a prisoner’s

right to be free from retaliation for filing a grievance was clearly established in 2010,

when the actions giving rise to this lawsuit took place. Even assuming that that right may

have been clearly established in other circuits, the case law from this circuit in 2010

could reasonably be understood as foreclosing that claim. See Adams v. Rice, 40 F.3d 72

(4th Cir. 1994). Because the controlling law in this circuit did not put the prison officials

on notice that their conduct violated Booker’s constitutional rights, I believe the prison

officials are entitled to qualified immunity. Accordingly, I respectfully dissent.

                                             I.

       Qualified immunity works to “avoid excessive disruption of government,” Harlow

v. Fitzgerald, 457 U.S. 800, 818 (1982), by “protect[ing] government officials

performing discretionary functions from civil damage suits insofar as the officials’

conduct does not violate clearly established rights of which a reasonable person would

have known,” Porterfield v. Lott, 156 F.3d 563, 567 (4th Cir. 1998) (internal quotation

marks and alteration omitted). “To be clearly established, a right must be sufficiently

clear that every reasonable official would have understood that what he is doing violates

that right.   In other words, existing precedent must have placed the statutory or

constitutional question beyond debate.” Reichle v. Howards, 132 S. Ct. 2088, 2093

(2012) (internal quotation marks, citations and alteration omitted).

       As a general rule, we look only to “the decisions of the Supreme Court, this court

of appeals, and the highest court of the state in which the case arose” when determining

                                             25
whether the defendant is entitled to qualified immunity. Yates v. Terry, 817 F.3d 877,

887 (4th Cir. 2016) (internal quotation marks omitted). If the case law of this court has

addressed the relevant constitutional question, contrary rulings from other circuits are not

relevant to the qualified-immunity inquiry. See Edwards v. City of Goldsboro, 178 F.3d

231, 251 (4th Cir. 1999) (“If a right is recognized in some other circuit, but not in this

one, an official will ordinarily retain the immunity defense.” (internal quotation marks

and alteration omitted)). In the absence of controlling authority from either the Supreme

Court, this court, or the highest state court, however, the existence of “a consensus of

cases of persuasive authority” from other jurisdictions can be enough to foreclose a claim

of qualified immunity. Ashcroft v. al-Kidd, 563 U.S. 731, 746 (2011) (internal quotation

marks omitted); Owens ex rel. Owens v. Lott, 372 F.3d 267, 279-80 (4th Cir. 2004).

                                              II.

       In the majority’s view, there was no controlling authority from this circuit in 2010

addressing whether retaliation against an inmate for filing a grievance violates the

inmate’s rights under the First Amendment. The majority therefore looks to case law

from other circuits, finds a consensus, and holds that an inmate’s right to be free from

retaliation for participating in the grievance system was clearly established.

       I do not disagree that the weight of authority outside this circuit holds that the First

Amendment is violated when prison officials retaliate against an inmate for filing a

grievance under an established grievance system. Where I disagree with the majority is

in its conclusion that case law from this circuit was silent on the relevant First

Amendment question.       In my view, this court’s decision in Adams v. Rice could

                                              26
reasonably be understood as holding that an inmate’s use of a prison grievance system

does not implicate the First Amendment and that grievance-based retaliation against the

inmate likewise does not implicate the First Amendment. Because Adams can reasonably

be understood to permit the actions of the prison officials at issue in this case, the

majority erred by looking outside the circuit to conclude otherwise. See Edwards, 178

F.3d at 251.

                                            A.

       In Adams, a North Carolina inmate requested a transfer to protective custody after

he was threatened by other inmates. State prison officials approved that request and

directed that the inmate be transferred to the protective custody facility at a different

prison. The inmate was never transferred, however, but was instead held in segregation

for nine months. He was released from segregation and transferred to another prison

after he withdrew his request for protective custody. See Adams, 40 F.3d at 73.

       Proceeding in forma pauperis under the version of 28 U.S.C. § 1915 then in effect,

the inmate thereafter filed a lawsuit alleging that prison officials, in retaliation for his

protective-custody request, had refused to transfer him to the protective-custody facility,

“denied him minimum custody status, failed to schedule a parole eligibility date and

hearing, and barred his access to the grievance process.” Adams, 40 F.3d at 74. The

district court concluded that the inmate’s claim lacked an arguable basis in law or in fact

and therefore dismissed the inmate’s claims as frivolous. See Neitzke v. Williams, 490

U.S. 319, 325 (1989) (“[A] complaint . . . is frivolous where it lacks an arguable basis

either in law or in fact.”).

                                            27
       The inmate appealed, contending that his complaint at least arguably stated claims

of retaliation for the exercise of constitutionally protected rights. Because the Eighth

Amendment protects inmates “from physical harm at the hands of fellow inmates

resulting from the deliberate or callous indifference of prison officials to specific known

risks of such harm,” Pressly v. Hutto, 816 F.2d 977, 979 (4th Cir. 1987), the inmate

contended that his reporting of the threats against him and request for protective custody

were at least arguably protected by the Eighth Amendment:

       Given that prisoners’ right to be protected hinges to a large extent on
       whether the risks are known by the prison officials to exist, it is arguable,
       that prisoners must perforce have a right to be free from retaliation in
       reporting such risks to those same officials. Freedom to report such
       incidents would appear to be an essential ingredient to the exercise of the
       recognized right to be free from harms prison officials know about and are
       in a position to prevent.

Adams v. Rice, Brief of Appellant, 1994 WL 16014459, at *17.

       This court rejected the inmate’s arguments. We first agreed with the district court

that the inmate’s claims were factually frivolous, as there were no allegations in the

complaint asserting that the single-cell housing the inmate received was in any way

different from the protective custody he requested. See Adams, 40 F.3d at 75.

       We likewise agreed with the district court’s determination that the complaint was

legally frivolous. As we explained, “claims of retaliatory actions are legally frivolous

unless the complaint implicates some right that exists under the Constitution. That is,

plaintiffs must allege either that the retaliatory act was taken in response to the exercise

of a constitutionally protected right or that the act itself violated such a right.” Id.



                                            28
Applying that standard, we rejected the inmate’s claim that he exercised an Eighth

Amendment right when he requested protective custody:

       Appellant’s assertion of a “right to inform” states only a claim of
       entitlement to a particular grievance procedure because he seeks, in
       essence, a means of bringing complaints regarding his incarceration to the
       attention of prison officials. As other circuits have recognized, there is no
       constitutional right to participate in grievance proceedings.

Id. Addressing the specific instances of retaliation by prison officials alleged by the

inmate, we explained that the inmate’s claims were doomed by the absence of an

underlying constitutional right. See id. As is most relevant to this case, we explained

that the inmate’s claim that prison officials prevented him from accessing the prison

grievance system was legally frivolous because “the Constitution creates no entitlement

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

state.” Id.

                                            B.

       The majority reads Adams as holding that “inmates have no constitutional

entitlement or due process interest in access to a grievance procedure. An inmate thus

cannot bring a § 1983 claim alleging denial of a specific grievance process, for example.”

Majority Op. at 13. According to the majority,

       Adams is entirely silent on the issue in this case – whether an inmate’s First
       Amendment right is violated when he is retaliated against for submitting a
       grievance pursuant to an existing grievance procedure. That a prison is not
       required under the Constitution to provide access to a grievance process
       does not mean that prison officials who retaliate against inmates for filing
       grievances do not violate the Constitution.




                                            29
Id. Because Adams does not “explicitly address” the constitutional right being pressed in

this case, id. at 15, the majority dismisses Adams entirely and turns to cases outside this

circuit to find the right clearly established.

       I believe the majority interprets Adams far too narrowly. Adams makes two

separate holdings addressing prison grievance systems. First, Adams holds that an

inmate cannot demand a grievance system structured to address whatever complaints he

might want to raise. See Adams, 40 F.3d 75 (rejecting inmate’s claim of entitlement to “a

means of bringing complaints regarding his incarceration to the attention of prison

officials”); id. (“[T]he Constitution creates no entitlement to grievance procedures . . . .”).

Second, Adams holds that inmates have no constitutional right to participate in a prison’s

existing grievance system. See id. (“[T]here is no constitutional right to participate in

grievance proceedings.”); id. (“[T]he Constitution creates no entitlement to . . . access to

any [grievance] procedure voluntarily established by a state.”). An inmate participates in

a grievance system, of course, by filing a grievance.

       When discussing Adams, the majority acknowledges the second holding only

indirectly, by referring to an unpublished opinion that “properly applied Adams” to reject

an inmate’s constitutional claim based on refusal to supply grievance forms. Majority

Op. at 15. The majority, however, never grapples with the implications of Adams’

second holding except to suggest, indirectly, that while there may be no First Amendment

right to file a grievance, if a grievance is in fact filed, retaliation based on the grievance

violates the First Amendment.             See id. (discussing unpublished opinion that

“misconstrued Adams to preclude an inmate from bringing a First Amendment claim

                                                 30
alleging retaliation in response to his verbal complaints to prison officials.”). I do not

believe that Adams can be distinguished in this manner.

       As we explained in Adams, retaliation claims are actionable under § 1983 only if

“the complaint implicates some right that exists under the Constitution. That is, plaintiffs

must allege either that the retaliatory act was taken in response to the exercise of a

constitutionally protected right or that the act itself violated such a right.” Adams, 40

F.3d at 75 (emphasis added). If an inmate has no constitutional right to file a grievance,

as Adams held, then the inmate exercises no constitutional right by filing a grievance.

And if filing a grievance implicates no constitutional right, then retaliation against the

inmate because of the grievance does not violate the Constitution. See id. (“A claim of

retaliation that fails to implicate any constitutional right lacks even an arguable basis in

law.” (internal quotation marks omitted)). I simply see no basis for concluding, as the

majority apparently does, that the act of filing a grievance -- an act that is not

constitutionally protected -- somehow imbues the filing with constitutional protections.

       Accordingly, it seems to me that this court’s decision in Adams affirmatively

closes the door to the retaliation claim being asserted here. While there may be no single

sentence in Adams that explicitly states that retaliation based on an inmate’s filing of a

grievance will not support a constitutional claim under § 1983, the qualified-immunity

inquiry does not require that level of specificity. See, e.g., Odom v. S.C. Dep't of Corr.,

349 F.3d 765, 773 (4th Cir. 2003) (explaining that the qualified-immunity analysis “must

take into consideration not only already specifically adjudicated rights, but those

manifestly included within more general applications of the core constitutional principle

                                            31
invoked” (internal quotation marks omitted)).        For the reasons outlined above, the

conclusion that the retaliation alleged in this case is not sufficient to support a claim of

retaliation under § 1983 follows inexorably from Adams’ clear and explicit holding that

inmates have “no constitutional right to participate in grievance proceedings.” Adams, 40

F.3d at 75.

       Even if it were somehow possible to draw the majority’s fine, lawyerly line

between this case and Adams, it still would not be appropriate to deny qualified

immunity. The qualified-immunity inquiry focuses on notice – whether the existing

precedent gives the officials “fair notice that they are acting unconstitutionally.”

Mullenix v. Luna, 136 S. Ct. 305, 314 (2015) (per curiam) (internal quotation marks

omitted). Thus, the question is not whether this court can come up with a plausible way

of distinguishing Adams from the facts of the case at bar; the question is whether, in light

of Adams, a prison official could “reasonably believe[] that his or her conduct complies

with the law.” Pearson v. Callahan, 555 U.S. 223, 244 (2009).

       For the reasons outlined above, I believe that a reasonable prison official could

read Adams as permitting the actions that were taken in this case.             Indeed, the

reasonableness of such a reading is confirmed by the fact that this court has applied

Adams in that very way. See Daye v. Rubenstein, 417 F. App’x 317, 319 (4th Cir. 2011)

(per curiam) (applying Adams to reject inmate’s claim that prison officials violated his




                                            32
First Amendment rights by retaliating against him for filing a verbal grievance). 1 While

the majority now says that Daye “misconstrued” Adams, Majority Op. at 15, the question

is not whether that reading of Adams ultimately proves to be wrong, but whether that

reading of Adams is reasonable:

              In interpreting qualified immunity . . . , we must appreciate the fact
       that the direction of the law may be difficult to ascertain. Thus, although
       public officials may be charged with knowledge of constitutional
       developments, they are not required to predict the future course of
       constitutional law. . . . The requirement, after all, is that the law be clearly
       established, not simply possibly established or even probably established.
       Since qualified immunity is appropriate if reasonable officers could
       disagree on the relevant issue, it surely must be appropriate when
       reasonable jurists can do so.

Swanson v. Powers, 937 F.2d 965, 968 (4th Cir. 1991) (emphasis added; citation and

internal alteration omitted); see Saucier v. Katz, 533 U.S. 194, 205 (2001) (“The concern

of the immunity inquiry is to acknowledge that reasonable mistakes can be made as to

the legal constraints on particular police conduct. . . . If the officer’s mistake as to what

the law requires is reasonable, . . . the officer is entitled to the immunity defense.”




       1
         The panel of judges deciding Daye included Judge Wilkinson, who wrote the
opinion in Adams. That the author of Adams agreed with the analysis in Daye provides
an additional indication of the reasonableness of its analysis.

       Although unpublished opinions do not clearly establish constitutional rights and
thus cannot be relied upon to impose liability on a government official, see Hogan v.
Carter, 85 F.3d 1113, 1118 (4th Cir. 1996) (en banc), I do not believe Hogan precludes
consideration of unpublished opinions when declining to impose liability, see id. (“We
could not allow liability to be imposed upon public officials based upon unpublished
opinions that we ourselves have determined will be binding only upon the parties
immediately before the court.”).


                                             33
(emphasis added)), overruled on other grounds by Pearson v. Callahan, 555 U.S. 223

(2009).

         In my view, Adams directly, though not explicitly, forecloses Booker’s retaliation

claim.    But even if the distinction between this case and Adams that the majority

apparently embraces were viable, a reasonable prison official could still conclude that the

actions alleged in this case were permissible under this court’s decision in Adams. See

Reichle, 132 S. Ct. at 2093 (qualified immunity should be granted unless the

unlawfulness of the challenged action would be apparent to “every reasonable official.”

(internal quotation marks omitted)). I therefore believe that the defendants are entitled to

qualified immunity.

                                              C.

         I recognize, of course, that other circuits considering the issue have concluded that

prison officials violate the First Amendment if they retaliate against an inmate for filing a

grievance. Regardless of how compelling the majority may find the analysis of those

cases, they simply are not relevant to our qualified-immunity inquiry.

         As this court has frequently explained, “[a] decision of a panel of this court

becomes the law of the circuit and is binding on other panels unless it is overruled by a

subsequent en banc opinion of this court or a superseding contrary decision of the

Supreme Court.” United States v. Collins, 415 F.3d 304, 311 (4th Cir. 2005) (internal

quotation marks omitted). Because Adams is binding, controlling authority that rejects

Booker’s claim, the majority errs by dismissing Adams and relying on cases outside this

circuit to deny qualified immunity. See Owens, 372 F.3d at 280 (explaining that when

                                              34
performing the qualified-immunity analysis, courts may look to case law from other

circuits only if there is no “controlling authority”); Edwards, 178 F.3d at 251 (“If a right

is recognized in some other circuit, but not in this one, an official will ordinarily retain

the immunity defense.” (internal quotation marks and alteration omitted)).

       If the majority believes Adams was wrongly decided, 2 the proper way to correct

the error is through en banc proceedings. The majority’s chosen path of artificially

narrowing the reach of Adams’ holdings and then dismissing the case as irrelevant

because it is not “directly on-point,” Majority Op. at 16, is disingenuous and inconsistent


       2
         The majority grounds the right at issue in this case in the First Amendment’s
Petition Clause, and the majority seems to suggest that Adams’ determination that
inmates have no constitutional right to participate in grievance proceedings is wrong
because exhaustion of remedies is generally required before a prisoner can file a civil
action challenging his conditions of confinement. See Majority Op. at 18. I disagree.

        Adams was decided in 1994, before the PLRA made exhaustion of “available”
administrative remedies a mandatory prerequisite for all prison-condition lawsuits. 42
U.S.C. § 1997e(a); see Woodford v. Ngo, 548 U.S. 81, 84–85 (2006) (explaining
evolution of exhaustion requirements). Nonetheless, as the Eighth Circuit explained in
Flick v. Alba, 932 F.2d 728 (8th Cir. 1991) (per curiam) -- a case we relied on in Adams -
- “the prisoner’s right to petition the government for redress is the right of access to the
courts.” Id. at 729 (emphasis added). If prison officials prevented an inmate from
pursuing a grievance through an existing grievance system, then the administrative
remedies were not “available” to the inmate, and the PLRA would not bar the inmate
from pursuing his claim in court. See, e.g., Kervin v. Barnes, 787 F.3d 833, 835 (7th Cir.
2015) (explaining that if a state creates a grievance system “yet prevents a prisoner from
utilizing it he will be excused from having to exhaust the grievance process as a
prerequisite to suing in federal court”); Miller v. Norris, 247 F.3d 736, 740 (8th Cir.
2001) (“[A] remedy that prison officials prevent a prisoner from utilizing is not an
available remedy under § 1997e(a) . . . .” (internal quotation marks and alteration
omitted)). Adams’ conclusion that there is no constitutional right to file a grievance,
even when considered in light of the PLRA’s mandatory exhaustion requirement, does
not restrict an inmate’s rights under the Petition Clause.


                                            35
with our approach to resolving questions of qualified immunity and with our obligation to

follow our own precedent.

                                             III.

       In Adams, this court held that “there is no constitutional right to participate in

grievance proceedings.” 40 F.3d at 75 (emphasis added). Because inmates participate in

grievance proceedings by filing a grievance, our decision in Adams must be understood

as holding that inmates have no constitutional right to file a grievance. The filing of a

grievance therefore implicates no constitutional right of the inmate and cannot support a

retaliation claim against prison officials. See id. (“[C]laims of retaliatory actions are

legally frivolous unless the complaint implicates some right that exists under the

Constitution. That is, plaintiffs must allege either that the retaliatory act was taken in

response to the exercise of a constitutionally protected right or that the act itself violated

such a right.” (emphasis added)).

       Adams is binding authority that directly rejects the constitutional right asserted in

this case. The majority errs by ignoring Adams and relying instead on out-of-circuit

cases that are inconsistent with our holding in Adams in order to declare that an inmate’s

right to be free from retaliation for filing a grievance was clearly established.

       Accordingly, for the foregoing reasons, I believe that the defendants are entitled to

qualified immunity, and I therefore respectfully dissent from the majority’s contrary

conclusion.




                                             36
