UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 17-6493

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

Plaintiff - Appellant,

v.

JOHN DOE, Health Services Director for the Virginia Department of Corrections; MR. WHITED, RNCB; Keen Mountain Correctional Center; R. SANDIFER, Institutional Ombudsman; Keen Mountain Correctional Center; J. KISER, Asst. Warden; Keen Mountain Correctional Center; R.C. MATHENA, Warden; Keen Mountain Correctional Center; L. FLEMING, Warden; Keen Mountain Correctional Center; DR. D’ALESSANDRO, Physician’s Assistant; Keen Mountain Correctional Center; M. STANFORD, RN; B. J. RAVIZEE, Institutional Ombudsman; Wallens Ridge State Prison; A. DAVID ROBINSON, Warden; Wallens Ridge State Prison; D. WELLS, RNCA; B. WALLS, Institutional Ombudsman; J. F. WALRATH, Warden River North Correctional Center; A. MULLINS, Correctional Major; River North Correctional Center,

Defendants - Appellees.

Appeal from the United States District Court for the Western District of Virginia, at Roanoke. Norman K. Moon, Senior District Judge. (7:16-cv-00038-NKM-RSB)

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

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

Affirmed in part, vacated in part, and remanded by unpublished per curiam opinion. Bonnie Keith Green, THE GREEN FIRM, PLLC, Charlotte, North Carolina, for Appellant. Mark R. Herring, Attorney General, Victoria N. Pearson, Deputy Attorney General, Margaret Hoehl O’Shea, Assistant Attorney General, Toby J. Heytens, Solicitor General, Matthew R. McGuire, Principal Deputy Solicitor General, Michelle S. Kallen, Deputy Solicitor General Designate, OFFICE OF THE ATTORNEY GENERAL, Richmond, Virginia; Mary Foil Russell, SANDS ANDERSON, PC, Christiansburg, Virginia, for Appellees.

Unpublished opinions are not binding precedent in this circuit.

2 PER CURIAM:

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

to dismiss and for summary judgment in Gregg-El’s

(2012) action. On

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

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

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

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

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

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

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

no right to participate in the grievance procedure and that Mullins’ act of denying Gregg-

El a job would not deter a person of ordinary firmness from exercising his First

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

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

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

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

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

1 Citing the continuing violation doctrine, Gregg-El also contests the district court’s conclusion that the statute of limitations barred his claims against the remaining Defendants. However, by neglecting to present this argument to the district court, Gregg- El has failed to preserve this issue for our review. See In re Under Seal,

(4th Cir. 2014) (“[A]bsent exceptional circumstances, we do not consider issues raised for the first time on appeal.” (ellipsis and internal quotation marks omitted)).

3 violated when he is retaliated against for filing a grievance. Booker v. S.C. Dep’t of

Corr.,

(4th Cir. 2017), cert. denied,

(2018).

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

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

Martin v. Duffy,

(4th Cir. 2017), cert. denied,

(2018);

Raub v. Campbell,

(4th Cir. 2015) (stating elements of First

Amendment claim).

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

denial of an institutional job would not “deter a person of ordinary firmness from the

exercise of First Amendment rights,” Constantine v. Rectors & Visitors of George Mason

Univ.,

(4th Cir. 2005) (internal quotation marks omitted), we observe

that our sister circuits have held otherwise, see Mack v. Warden Loretto FCI,

(3d Cir. 2016); Williams v. Meese,

(10th Cir. 1991). We

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

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

person’s exercise of First Amendment rights.” Constantine,

.

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

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

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

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

complaints and Mullins’ decision that Gregg-El was unqualified to work a particular job

4 may support an inference of causation. See Foster v. Univ. of Md.-E. Shore,

(4th Cir. 2015). 2

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

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

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

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

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

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

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

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

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

material factual disputes exist as to causation, rendering summary judgment

inappropriate.

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

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

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

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

2 We have recognized that the analysis for causation is identical under § 1983 and Title VII of the Civil Rights Act of 1964, as amended. See Causey v. Balog,

(4th Cir. 1998).

5 affirm this part of the order for the reasons stated by the district court. Gregg-El v. Doe,

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

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

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

remainder of the district court’s order. We dispense with oral argument because the facts

and legal contentions are adequately presented in the materials before this court and

argument would not aid the decisional process.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED

3 Contrary to Gregg-El’s argument, we discern no abuse of discretion in the district court’s decision not to convert Wells’ motion to dismiss into a motion for summary judgment. See Wysocki v. Int’l Bus. Mach. Corp.,

(6th Cir. 2010) (stating standard of review).

6