                                       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.
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.


                                             2
       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


                                             3
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.




                                              4
       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))).


                                            5
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


                                              6
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


                                                7
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


                                              8
(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




                                              9
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


                                                10
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


                                             11
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.




                                             12
       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)).




                                               13
       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


                                            14
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.


                                              15
(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


                                             16
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.


                                               17
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.


                                              18
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.


                                             19
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


                                              20
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]


                                              21
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 extension 4—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).


                                              22
(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




                                               23
AFFIRMED IN PART, REVERSED IN PART,
AND REMANDED.




24
