Fourth Circuit Revives Virginia Prisoner’s Challenge to Discipline for Allegedly Sexually Harassing Guard
by David M. Reutter
On February 3, 2023, the U.S. Court of Appeals for the Fourth Circuit reversed a lower court’s grant of summary judgment to Virginia prison officials, in a civil rights complaint by a state prisoner alleging a guard falsely accused him of sexual harassment and supervisors refused him evidence that would exonerate him.
Before the Court was an appeal brought by Emmanual King Shaw, who has been held at Sussex I State Prison (SISP) since 2017. A female guard charged Shaw on July 19, 2017, with directing lewd behavior toward her in the prison showers. Shaw denied the allegation and contended security-camera footage would vindicate him.
Shaw was placed in isolation pending a hearing on the charge, which should have occurred within 15 days under state Department of Corrections (DOC) policy. From August 2 to 10, 2017, Shaw filed multiple internal complaints and letters to prison officials regarding the delay in his hearing, accusing staff of opening and intercepting them under pretense they had a faulty destination address.
When a disciplinary hearing was finally held on August 17, 2017, the supervising guard refused to review any security-camera footage and found Shaw guilty on the charging guard’s statements. Because he already had a disciplinary history of “lewd or obscene acts against staff, particularly female staff,” DOC transferred him to Red Onion Prison, a higher-security facility.
After exhausting administrative remedies, Shaw filed his pro se complaint, accusing Defendants of violating his Fourteenth Amendment due-process rights by withholding the video evidence at his disciplinary hearing, as well as violating his First Amendment rights by retaliating when he objected with placement in isolation prior to his hearing.
The U.S. District Court for the Eastern District of Virginia granted Defendants’ motion for summary judgment, finding no causal link between his constitutionally protected self-defense on the disciplinary charge and his placement in administrative segregation. Shaw appealed.
The Fourth Circuit first noted that maximum-security incarceration “[is] so atypical and significant that it would give rise to a liberty interest ‘under any plausible baseline,’” citing Wilkinson v. Austin, 545 U.S 209 (2005). Shaw’s allegations, when read liberally, “sufficiently presented the alternative liberty interest – invoking his fear of transfer – as well as the procedural defect” when prison officials refused to review video evidence, the Court concluded. This was therefore a plausible allegation that he suffered “a colorable violation of his procedural due process right.”
But since “[m]uch of the evidence Shaw needs in this matter to combat a motion for summary judgment either bears on the Prison Officials’ subjective knowledge or is in their exclusive control,” the Court said he should have been allowed discovery, and the district court “abused its discretion by granting summary judgment pre-discovery.”
“The fact of the Prison officials’ failure to disclose the video is deeply concerning,” the Court wrote, and by itself “bespeaks the insufficiency of the summary judgment record.”
“On this basis alone, the district court abused its discretion,” the Court said.
That the hearing and transfer occurred after and “in extremely close temporal proximity” to Shaw’s complaints and letters to prison officials served to support his claim that both amounted to adverse actions taken in retaliation for constitutionally protected activity.
Thus the Court said that Shaw’s claims were improperly denied, and the district court’s order was reversed. Shaw was represented before the Court by appointed counsel, Daniel S. Severson with Kellogg Hansen Todd Figel & Frederick PLLC in Washington, D.C. On remand, the Court recommended again appointing counsel for Shaw. See: Shaw v. Foreman, 59 F.4th 121 (4th Cir. 2023).
The case has since returned to the district court, which appointed Shaw counsel on May 22, 2023, from attorney Emily E. Kelly of Maguire Woods LLP in Washington, D.C. PLN will update developments as they are available. See: Shaw v. Foreman, USDC (E.D.Va.), Case No. 1:18-cv-01286.