USCA4 Appeal: 22-6380 Doc: 48 Filed: 03/04/2025 Pg: 1 of 25
PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 22-6380
JASON WAYNE GOWEN,
Plaintiff - Appellant,
v.
LIEUTENANT WINFIELD, #23; SERGEANT P.R. FOUCHE, #40; CORPORAL TAYLOR, #88; OFFICER D.M. SCHNEBLAGGER,
Defendants - Appellees.
and
MAJOR ENOCHS, #9
Defendant.
Appeal from the United States District Court for the Western District of Virginia, at Roanoke. Thomas T. Cullen, District Judge. (7:20-cv-00247-TTC-JCH)
Argued: October 31, 2024 Decided: March 4, 2025
Before NIEMEYER, BENJAMIN and BERNER, Circuit Judges.
Reversed in part, vacated in part, and remanded by published opinion. Judge Berner wrote the opinion, in which Judge Niemeyer and Judge Benjamin joined. USCA4 Appeal: 22-6380 Doc: 48 Filed: 03/04/2025 Pg: 2 of 25
ARGUED: Robert Louis Jones, IV, SULLIVAN & CROMWELL LLP, New York, New York, for Appellant. Christopher Stanislaw Dadak, GUYNN WADDELL, P.C., Salem, Virginia, for Appellees. ON BRIEF: Daniel R. Sweeney, Jason M. Winston, SULLIVAN & CROMWELL LLP, New York, New York, for Appellant. John R. Fitzgerald, GUYNN WADDELL, P.C., Salem, Virginia, for Appellees.
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BERNER, Circuit Judge:
Jason Wayne Gowen was held in pretrial detention at the Lynchburg Adult
Detention Center in Lynchburg, Virginia. Our Constitution protects the right of pretrial
detainees like Gowen to be free from punishment without due process of law. Yet only
hours after he complained about unusually hot conditions in his cell and encouraged other
inmates to do the same, Gowen was removed from the general population and placed in
solitary confinement. There he remained for 125 days.
Gowen brought suit against the correctional officers whose actions led to his solitary
confinement. He alleges they violated his First Amendment rights by retaliating against
him for raising a grievance about the conditions in the cells and encouraging other inmates
to do the same. He also alleges that the officers violated his rights under the Fourteenth
Amendment by failing to provide him due process of law in placing him in solitary
confinement. The district court dismissed Gowen’s First Amendment retaliation claim and
later granted summary judgment to the correctional officers on the Fourteenth Amendment
due process claim. We reverse dismissal of Gowen’s First Amendment retaliation claim
and vacate the district court’s grant of summary judgment.
I. Background
While awaiting trial on criminal charges, Gowen was detained in a lockdown facility
known as K-Unit at the Lynchburg Adult Detention Center (LADC). K-Unit was made up
of 48 cells, each of which had solid doors with a small slot that could be opened to allow a
food tray to pass through. On September 26, 2018, the cells became abnormally hot and
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humid after the air-conditioning system stopped working. Before returning to their cells
for the day, a process known as “lockdown,” a group of about 20 inmates requested that
the food tray slots in their cells be kept open to allow for some air circulation. The
correctional officer assigned to K-Unit at the time was not authorized to grant such a
request and called for assistance from a supervisor. From there, the parties’ accounts of
what transpired differ.
A. Gowen’s Version of Events
The following is Gowen’s account of the events: On the morning of September 26,
Gowen exited the cell block shower and noticed about 20 inmates standing in front of the
correctional officers’ podium. Gowen walked over to investigate and joined the group,
which was requesting that the officer on duty allow the food tray slots to remain open. The
officer requested that his supervisors come to respond to the inmates’ request.
Correctional officers Captain William Enochs and Lieutenant Gerald Winfield
arrived shortly thereafter. Enochs asked Gowen what the issue was, and Gowen replied
that the inmates “just want[ed] [their] tray slots opened in order to get some air circulation.”
J.A. 253. Enochs immediately agreed, stating, “I have no problem with the slots being
opened.” J.A. 15. Gowen then told the other inmates that Enochs had granted their request
to open the tray slots and encouraged them to return to their cells to lock down. The inmates
did so, and the correctional officers then went from cell to cell to open the food tray slots.
Gowen described helping the officers pop the tray slots open with his I.D. card. Gowen
then returned to his cell.
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A short time later, Winfield returned with a digital thermometer to check the
temperature in K-Unit. Gowen asked Winfield what the temperature was in his cell, but
Winfield refused to tell him. Winfield walked away while saying that the cell was “pretty
warm.” J.A. 263. Gowen then “encourage[d] other inmates to stand up for their rights [and]
file complaints,” suggesting that they “write . . . up [the officers] for keeping us in cells
with no air circulating.” Pl.’s Opp’n to Mot. to Dismiss Br. 5 (first quote); J.A. 264 (second
quote); see Pl.’s Opp’n to Mot. to Dismiss Br. 7.
Just hours after the encounter regarding the thermometer reading, Winfield returned
to K-Unit to inform Gowen that he was “under investigation . . . as ‘a management
problem.’” J.A. 15. Winfield said to Gowen, “[s]o you wanna be a ring leader, huh? We’ve
got a place for ring leaders.” J.A. 16. At that point, Gowen was moved to a short-term
intake and classification area called “A-pod”—known to inmates as “the dungeon.” The
cells in A-pod had no outside windows, hot water, or access to hair clippers and shaving
tools, and had constant overhead lighting.
Later that day, Officer Onesha Chambers served Gowen with a referral to LADC’s
Institutional Classification Committee (ICC). The referral stated that Winfield had asked
the ICC to review Gowen “for the following reasons: management problem / pending
investigation.” J.A. 145. When Chambers served Gowen with the ICC referral, she stated
that it was “just a notification of an investigation.” J.A. 261. When Gowen asked why he
was under investigation, Chambers responded, “I don’t know[.] I guess this morning.”
J.A. 261. The referral stated only that a hearing would occur at some future undetermined
date.
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The referral provided Gowen an opportunity to identify three witnesses for the
hearing and advised him that he was permitted to have an “inmate advisor” present at the
hearing. Gowen listed his three desired witnesses: Enochs and two inmates who were
present on the morning of September 26. Gowen also told Chambers that he wanted to have
an inmate advisor present and inquired where on the referral he should indicate this. In
response, Chambers told Gowen that he could request an inmate advisor “when [he] was
served the actual hearing date” and that “this form was just to notify [Gowen] of [his]
rights.” J.A. 261. The referral indicated that Gowen was entitled to 24-hour notification of
the ICC hearing, which Gowen elected not to waive. J.A. 145.
After receiving the referral, Gowen remained in A-pod for over a week. During this
time, Gowen submitted an informal request and a grievance asking why he was under
investigation and when his hearing would take place. He also requested the assistance of
an inmate advisor. Gowen was then transferred from A-pod to the LADC’s “Segregation
Unit,” where Gowen was held in solitary confinement. Gowen claims he submitted another
informal request and another grievance restating his concerns while held in the Segregation
Unit. Gowen never received a response to any of these grievances or informal requests.
After 34 days of solitary confinement in the Segregation Unit—without prior
notice—Gowen was removed from the Segregation Unit and taken to an ICC hearing. In
addition to receiving no notice of the hearing, Gowen was not provided the assistance of
an inmate advisor to prepare for or advise him during the hearing. Additionally, two of the
three witnesses Gowen had requested be present were unavailable at the time of the
hearing. Enochs was away from the jail that day and one of Gowen’s inmate witnesses was
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in court proceedings, leaving Gowen with only one of his requested witnesses for the
hearing, a fellow inmate.
Three LADC staff members presided over the hearing: Sergeant Phyllis Fouché,
Corporal Todd Taylor, and Schneblagger. At the hearing, Gowen registered objections to
the fact that two of his witnesses were not present, and that he had not been provided with
an inmate advisor. He also objected that the hearing was not recorded or otherwise
memorialized. In response to these objections, the ICC officers told Gowen that recording
the hearing was “not necessary” because “there is no review,” “[the ICC’s] decision is
final,” and “there [is] no appeal.” J.A. 18.
The ICC heard from Winfield and Gowen’s sole witness and then issued its
recommendation that Gowen remain in solitary confinement and that his confinement be
again reviewed after 90 days. The ICC’s written disposition contains no explanation for
these recommendations, stating only that Gowen “is not clear by Administration [at] this
time to return to gen[eral] pop[ulation].” J.A. 193.
Although Gowen immediately expressed his desire to appeal the ICC’s decision, he
was told that “there is no appeal.” J.A. 26. Gowen filed a written inmate request form the
following day reiterating his “verbal complaints from [the] hearing” and expressing yet
again his request to appeal. J.A. 26–27. Nine days passed with no response. Gowen then
filed a written grievance highlighting the same objections and, again, requesting an appeal.
J.A. 26–27. Gowen never received a response, not to his inmate request form nor to his
grievance.
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Gowen’s cell in solitary confinement measured 7 feet by 11 feet. During the 125
days Gowen was confined there, he was denied the ability to exercise or interact with
others, in person or by telephone. After months of segregation without any meaningful
human contact, Gowen began suffering from mental health problems, including
depression, auditory and visual hallucinations, and paranoia. He was treated for these
conditions with three psychotropic medications, including an anti-psychotic. He also
gained 55 pounds (going from 180 pounds to 235 pounds), developed high blood pressure,
and suffered from seizure-like dizzy spells and an eczema-like skin condition.
Gowen brought this lawsuit against prison officers Enochs, Winfield, Schneblagger,
Fouché, and Taylor the officers involved in his detention and the ICC hearing (the
Officers).
B. The Officers’ Version of Events
The Officers describe some of the relevant events differently. They agree that on
September 26, 2018, the inmates in K-Unit asked the officer in charge to open the food
tray slots and that the officer lacked authority to approve the request. According to the
Officers, though, the officer in charge agreed to ask his supervisor to approve the request
only because Gowen and several other inmates refused to lock down. Enochs claims that
Gowen “vocally encouraged other inmates to not lock down in their cells until management
took steps to address his perceived needs related to the broken air conditioner.” J.A. 125.
According to Winfield, Gowen “only locked down, and directed other inmates to
lock down, once supervisors responded to K-Unit and . . . Enochs agreed to have the tray
slots opened in the cells.” J.A. 141. He “created unrest as he walked back to his cell by
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loudly encouraging all inmates in K-Unit to file grievances against jail officers about the
air conditioning issue,” and violated jail policy by refusing to lock down and inciting a
disturbance. 1 J.A. 141. In so doing, Gowen created a potential security issue and
demonstrated that he wielded “significant influence over the other inmates.” J.A. 126.
Following the encounter with the inmates in K-Unit, Enochs called a meeting with
“a few key, experienced senior officers, including Lieutenant Winfield,” to discuss the
incident. J.A. 126. Those senior officers identified “Gowen and two other inmates” as “key
agitators” during the incident. J.A. 126. Based on this identification, Enochs’s own
observations from the incident, and two prior reports of Gowen’s misconduct from
previous months, Enochs referred Gowen to the ICC as a management problem. Enochs
ordered that Gowen be placed in solitary confinement pending the ICC investigation and
hearing.
The Officers do not dispute that the only details provided on Gowen’s ICC referral
were “management problem / pending investigation.” J.A. 145. The Officers dispute
Gowen’s contention that they failed to inform him of the reasons for his referral, however.
Chambers claims that she “verbally informed Gowen why he was being referred to the
ICC,” that “he was referred to ICC as a management problem for his actions in K-Unit that
morning, in response to the heat in the unit.” J.A. 143. Chambers further claims that Gowen
“did not ask for clarification on the reasons for his referral to ICC.” J.A. 144.
1 Notably, the Officers never submitted an incident report or any other LADC record detailing the purported disturbance. 9 USCA4 Appeal: 22-6380 Doc: 48 Filed: 03/04/2025 Pg: 10 of 25
The Officers agree that Gowen was not provided the assistance of an inmate advisor
to prepare or advise him during the ICC hearing. According to Fouché, the ICC chair,
Gowen “was informed prior to the hearing of his right to have a staff member present as
hearing advisor” but he never requested such an advisor. J.A. 149. There is no dispute,
however, that Gowen was not afforded 24-hour notice of the ICC hearing and was denied
two of his three requested witnesses at the hearing. The Officers contend that the ICC
hearing was scheduled to take place on the “first available date that worked for all required
staff members” after the investigation was completed. J.A. 150. Fouché claims to have
been unaware that two of Gowen’s requested witnesses would be unavailable that day.
Fouché states, however, that witness participation is not required by the ICC.
The Officers disagree somewhat with Gowen about what transpired at the ICC
hearing. They agree that Winfield presented his version of the events that took place in
K-Unit on September 26, 2018, and that the ICC heard the from Gowen’s sole witnesses,
a fellow inmate who was present for the events. The Officers claim Gowen did discuss the
events of September 26. They assert that Gowen “presented his version of events” and did
not simply raise procedural objections to the hearing. J.A. 149.
Finally, the Officers dispute that Gowen filed any grievances following the ICC
hearing. They claim that he never sought to contest the ICC decision through the LADC
grievance process. According to Enochs, Gowen submitted 72 inmate request forms and
five grievances to jail staff between September 26, 2018, and April 27, 2020, but none
related to the allegations in this lawsuit and all were documented and answered. The
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Officers did not produce any of these inmate request forms or grievances in discovery,
however.
C. LADC Grievance Process
The LADC employs a four-step inmate grievance process. First, the inmate must
attempt to raise the issue orally with an officer. Second, the inmate must submit the
complaint on an informal inmate request form. An LADC officer is required to respond to
that inmate request form in writing. Third, the inmate must request and submit a formal
grievance form. An LADC officer is once again required to provide a written response, but
for these formal grievances the officer must do so within nine workdays. Fourth, the inmate
must then appeal to the jail administrator by submitting the grievance form, the LADC
officer’s response to the grievance, and an appeal form.
II. Procedural History
Gowen, proceeding pro se, filed suit under 42 U.S.C. § 1983 in the Western District
of Virginia. Gowen alleges that the Officers violated his First Amendment right to be free
from retaliation and his Fourteenth Amendment substantive and procedural due process
rights.
The Officers moved to dismiss Gowen’s claims. The district court denied the motion
with respect to Gowen’s Fourteenth Amendment claims, concluding that Gowen stated
plausible substantive and procedural due process claims, and that the Officers were not
entitled to qualified immunity on the pleadings. Gowen v. Enochs, No. 7:20-CV-00247,
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2021 WL 960702, at *5–7 (W.D. Va. Mar. 15, 2021). 2 The district court dismissed
Gowen’s First Amendment retaliation claim. Id. at *8–10. In granting dismissal, the district
court first determined that Gowen adequately pled facts sufficient to satisfy the first two
elements of a First Amendment retaliation claim; that he had engaged in protected First
Amendment activity, and that the Officers took an action that adversely affected his First
Amendment rights. Id. at *8–9. On the third element of a First Amendment retaliation
claim, however, the district court determined that Gowen failed to plead facts sufficient to
show that his protected conduct was a substantial or motivating factor for his placement in
solitary confinement. Id. at *9. The district court thus dismissed Gowen’s claim of First
Amendment retaliation against all the Officers. Id. at *10.
Following limited discovery, the Officers 3 moved for summary judgment on
Gowen’s Fourteenth Amendment due process claims. The Officers advanced three main
arguments in support of their motion for summary judgment: 1) Gowen failed to exhaust
his administrative remedies at LADC before filing his verified complaint; 2) the Officers
did not violate Gowen’s substantive or procedural due process rights; and 3) even if the
Officers did violate Gowen’s rights, qualified immunity precludes suit.
Gowen subsequently filed a 22-page handwritten memorandum that addressed all
but one of the Officers’ arguments for summary judgment—the argument that he failed to
2 The district court dismissed Gowen’s Fourteenth Amendment claims against Enochs, after finding that the allegations failed to state a claim against Enochs. Gowen does not appeal this ruling. 3 Although Enochs had been dismissed from this case, we continue to use “the Officers” to describe the remaining Defendants-Appellees when analyzing the appeal from the grant of summary judgment. 12 USCA4 Appeal: 22-6380 Doc: 48 Filed: 03/04/2025 Pg: 13 of 25
exhaust available administrative remedies. Gowen did, however, address that point in his
verified complaint. In responding to the Officers’ motion for summary judgment, Gowen
incorporated the verified complaint by reference into his memorandum in opposition.
The district court granted the Officers’ motion for summary judgment because it
determined that Gowen failed to exhaust his administrative remedies. Gowen v. Winfield,
No. 7:20-CV-00247, 2022 WL 822172, at *2–4 (W.D. Va. Mar. 18, 2022). The district
court concluded that “[a]lthough Gowen responded, in detail, to all the other declarations
filed by [the Officers,] he did not respond to Maj. Enochs’s declaration and did not address
[the Officers’] exhaustion argument at all in his brief in opposition to summary judgment.”
Id. at *3. The district court thus assumed that Enochs’s declaration was undisputed and that
Gowen had conceded that he failed to exhaust his administrative remedies. Id. Despite
recognizing that Gowen’s verified complaint directly disputed Enochs’s declaration, the
district court dismissed the sworn statements in the verified complaint as “unsubstantiated
and conclusory assertions.” Id. at *4 (quoting Pickens v. Lewis, No. 1:15-cv-275-FDW,
2017 WL 3277121, at *4 (W.D.N.C. Aug. 1, 2017)). The district court did not reach the
Officers’ other arguments.
III. Standard of Review
We review de novo a district court decision granting a motion to dismiss pursuant
to Federal Rule of Civil Procedure 12(b)(6). Harvey v. Cable News Network, Inc., 48 F.4th
257, 268 (4th Cir. 2022). At the pleading stage, we evaluate whether the complaint states
a plausible claim for relief. Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). We
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accept the allegations in the complaint as true and draw all reasonable inferences in favor
of the plaintiff. See Martin v. Duffy, 858 F.3d 239, 248 (4th Cir. 2017) (“Martin I”).
Particularly “when an action implicates a civil rights interest,” we “must not dismiss the
complaint unless it appears to a certainty that the plaintiff would not be entitled to relief
under any legal theory which might plausibly be suggested by the facts alleged.” Shaw v.
Foreman, 59 F.4th 121, 127 (4th Cir. 2023) (citation omitted). Furthermore, we must
liberally construe complaints filed pro se. Wall v. Rasnick, 42 F.4th 214, 218 (4th Cir.
2022).
We also review de novo an order granting a motion for summary judgment. Reyes
v. Waples Mobile Home Park Ltd. P’ship, 91 F.4th 270, 276 (4th Cir. 2024). Summary
judgment is appropriate only if “there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Id. (quoting Fed. R. Civ. P. 56(a)). “A
factual dispute is genuine if the evidence is such that a reasonable jury could return a verdict
for the nonmoving party.” Id. (internal quotation marks omitted).
IV. Analysis
We analyze this appeal in three parts. First, we address the question of our
jurisdiction to reach the motion to dismiss. Next, we analyze the district court’s dismissal
of Gowen’s First Amendment retaliation claim. Finally, we review the district court’s order
granting summary judgment against Gowen on his Fourteenth Amendment claim.
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A. Appellate Jurisdiction
The district court entered two prior orders rejecting Gowen’s claims: an order
dismissing Gowen’s First Amendment claims and Enochs, and an order granting the
remaining Officers’ motion for summary judgment on the Fourteenth Amendment claim.
Because it was not a final order, Gowen had no right to appeal the motion to dismiss until
the order granting summary judgment resolved his remaining claim. See Britt v. DeJoy, 45
F.4th 790, 793 (4th Cir. 2022) (en banc).
On appeal, Gowen’s pro se opening brief requested review of the entire record,
including both the summary judgment and dismissal orders. Gowen’s subsequent briefs,
filed on his behalf by court-appointed counsel, also requested review of the entire record.
In his notice of appeal, however, Gowen expressed only an intent to challenge the summary
judgment order, not the earlier order on the motion to dismiss. The Officers argue that the
motion to dismiss is not properly before us because, they claim, Gowen failed to comply
with Federal Rule of Appellate Procedure 3 by not expressly challenging the dismissal
order. Our recent precedent, Jenkins v. Woodard, 109 F.4th 242 (4th Cir. 2024), forecloses
the Officers’ argument.
In Jenkins, this court explained that a notice of appeal need only state who is
appealing, the order or judgment being appealed, and to what court the appeal is being
taken. 109 F.4th at 246 (citing Fed. R. App. P. 3 Advisory Committee’s Note to 2021
Amendment). Rule 3 was amended in 2021 to adopt the “general merger rule,” “under
which a party’s identification of the final judgment in its notice of appeal confers appellate
jurisdiction over prior interlocutory orders that merge into the final judgment.” Id.
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Accordingly, “a party need not designate all orders he seeks to appeal in his notice of
appeal.” Id. (citing Fed. R. App. P. 3(c)(4)). “Rather, a party’s notice of appeal of a final
order encompasses all orders that merge into that order.” Id. Though the pro se appellant
in Jenkins expressly appealed only a summary judgment order, “that order encompassed
all prior district court orders,” including the district court’s orders denying appointment of
counsel and additional time for discovery. Id. at 247.
Gowen’s notice of appeal similarly stated that he received the district court’s
“memorandum of opinion . . . granting defendants’ motion for summary judgment” and
that he intended to challenge “this decision.” J.A. 342. As Jenkins instructs, “an appeal
from a final judgment permits review of all rulings that led up to the judgment.” 109 F.4th
at 247 (quoting Fed. R. App. P. 3 Advisory Committee’s Note to 2021 Amendment).
Because Gowen adequately complied with Rule 3, we possess appellate jurisdiction to
review the district court’s order granting the Officers’ motion to dismiss.
B. Gowen’s First Amendment Claim
The First Amendment prohibits laws “abridging the freedom of speech.” U.S. Const.
amend. I. Accordingly, the First Amendment prohibits public officials from retaliating
against individuals for having engaged in protected speech. See Booker v. S.C. Dep’t of
Corr., 855 F.3d 533, 545 (4th Cir. 2017). To state a First Amendment retaliation claim, 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.”
Martin v. Duffy, 977 F.3d 294, 299 (4th Cir. 2020) (“Martin II”) (alterations omitted).
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Gowen alleged two First Amendment claims. First, he claimed the right of
incarcerated people to be free from retaliation for utilizing the jail’s grievance process. See
Booker, 855 F.3d at 530–41. The district court correctly recognized this right. Gowen v.
Enochs, 2021 WL 960702, at *8–9. Second, he claimed the right to be free from retaliation
for peaceably encouraging other incarcerated people to submit grievances about the
conditions of confinement. See Lamar v. Payne, 111 F.4th 902, 908 (8th Cir. 2024)
(holding that peaceably encouraging other incarcerated people to raise grievances is
protected speech where the speech itself poses no security concern). 4
The adverse action here is plain. Gowen alleges that the Officers placed him in
solitary confinement. Any action taken by a public official that “would likely deter a person
of ordinary firmness from the exercise of First Amendment rights” is properly considered
retaliation. Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 500
(4th Cir. 2005). Placement in solitary confinement isolation is an adverse action.
See Martin II, 977 F.3d at 305.
In order to plead a First Amendment retaliation claim, a plaintiff must plausibly
allege a causal connection between First Amendment activity and an adverse action. Martin
I, 858 F.3d at 249–50. This causation element requires that a plaintiff plausibly allege that
4 The district court misapprehended the second right asserted by Gowen. See Gowen v. Enochs, 2021 WL 960702, at *9. Gowen asserted the right to peaceably encourage others to submit grievances. He did not assert a right to assist other inmates in writing grievances or legal documents, nor does he allege that he offered such assistance. The cases cited by the district court, Tighe v. Wall, 100 F.3d 41 (5th Cir. 1996) and Neal v. Stouffer, No. CIV.A. PJM-12-524, 2013 WL 693036 (D. Md. Feb. 25, 2013), address and reject assertions of this latter right, but do not address the right asserted by Gowen.
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“the defendants were aware of [the plaintiff’s] engaging in a protected activity” and show
“some degree of temporal proximity to suggest a causal connection.” Shaw, 59 F.4th at
130–31.
Despite the prescribed lenience we must afford to pro se plaintiffs, see Wall, 42
F.4th at 218, the district court concluded that Gowen did not meet his burden to plead the
causation element. The district court held that Gowen “fail[ed] to allege that any of the
defendants knew he had filed any grievances” and “offered no facts to connect the filing
of his grievances to any of the actions taken against him.” Gowen v. Enochs, 2021 WL
960702, at *9. The district court also stated that temporal proximity alone cannot satisfy
the causation element of a First Amendment retaliation claim. Id. The district court,
however, failed to take full account of Gowen’s allegations.
Gowen alleges that just hours after he orally complained about the heat in his cell
and encouraged other inmates to utilize the grievance process to do the same, the Officers
moved him to A-Pod and referred him to the ICC. A week later, Gowen was placed in
solitary confinement. The first step in the LADC grievance process requires an inmate to
“make an effort to verbally resolve the situation with the officer assigned to the housing
unit.” J.A. 244. Gowen thus commenced the LADC’s grievance process when he
complained to Enochs and Winfield about the hot and humid conditions in his cell.
Utilizing the jail’s grievance process is First Amendment protected activity. See Martin I,
858 F.3d at 250 (“The First Amendment protects the right to petition the Government for
a redress of grievances, and the Supreme Court has recognized that prisoners retain this
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constitutional right while they are incarcerated.”) (internal citations omitted); Booker, 855
F.3d at 530–41.
The district court ruled that Gowen failed to connect adequately the “filing of
grievances” with the adverse actions taken against him. Gowen v. Enochs, 2021 WL
960702, at *9 (emphasis added). To the extent that the district court limited First
Amendment protection to formal grievances, the LADC’s third step in the grievance
process, that was error. Indeed, this would mean public officials could retaliate freely
against inmates engaging in protected free speech as long as the officials did so promptly,
and inmates could be subject to retaliation as long as they were only at the stage of lodging
informal grievances. Such a rule would not comport with the requirements of the First
Amendment and must be rejected.
Gowen also plausibly alleges that at the time the Officers removed him from K-
Unit, the Officers knew Gowen grieved the conditions in his cell, encouraged other inmates
to do the same, and then later knew of Gowen’s grievances regarding the alleged lack of
process. Gowen alleges that he complained about the conditions to Enochs and Winfield
directly. He alleges that he complained about the ICC process and his placement in solitary
confinement to both Chambers and the ICC officers. He also alleges that he submitted
informal inmate requests and grievances that presumptively would have been read by the
Officers, particularly because Enochs is the jail administrator for the LADC.
We conclude that Gowen plausibly alleges the causation element of his First
Amendment claim. At the pleading stage, alleging temporal proximity between protected
First Amendment activity and a retaliatory act satisfies the causation element when the
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official is aware of the First Amendment activity. Martin I, 858 F.3d at 250 Gowen alleges
that the reprisal came swiftly after he commenced the informal grievance process. Gowen
also alleges that when Winfield removed Gowen from his cell to take him to A-Pod,
Winfield said to Gowen “[s]o you wanna be a ring leader, huh? We’ve got a place for ring
leaders.” J.A. 16. This statement supports a reasonable inference that the Officers removed
Gowen from the general population in retaliation for his grieving the conditions in his cell
and encouraging other inmates to do the same.
Having determined that Gowen adequately alleges that he engaged in protected First
Amendment activity, was subject to an adverse action, and that there was a causal
relationship between the two, we hold that Gowen adequately pleads the necessary
elements of a claim of First Amendment retaliation. Dismissal was therefore improper.
C. Gowen’s Fourteenth Amendment Claim
Pretrial detainees have a well-settled constitutional right under the Fourteenth
Amendment to be “free from punishment.” Williamson v. Stirling, 912 F.3d 154, 173 (4th
Cir. 2018) (quoting Bell v. Wolfish, 441 U.S. 520, 535 (1979)). That right derives from the
Due Process Clause, which protects such detainees from punishment “prior to an
adjudication of guilt in accordance with due process of law.” Id. (quoting Bell, 441 U.S. at
535). This settled principle applies “to substantive and procedural due process claims
pursued by pretrial detainees.” Id. at 174 (collecting cases). Segregation of a pretrial
detainee, intended as a penalty for disciplinary infractions, constitutes punishment such
that it implicates a protected liberty interest under the Fourteenth Amendment and may not
be imposed without due process. Dilworth v. Adams, 841 F.3d 246, 253 (4th Cir. 2016).
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Gowen was a pretrial detainee at all relevant times. He asserts that the Officers
violated both his substantive and procedural due process rights by placing him in solitary
confinement in retaliation for using the LADC’s grievance process—in other words, by
punishing him without proper cause or procedure. When considering whether Gowen was
punished in contravention of the Due Process Clause, we accept the evidence in the light
most favorable to him. See Williamson, 912 F.3d at 178.
The district court granted the Officers’ motion for summary judgment after
determining that Gowen had failed to first exhaust his available administrative remedies.
Gowen v. Winfield, 2022 WL 822172, at *2–4. The Prison Litigation Reform Act provides
that an inmate’s lawsuit may be defeated for failing to fully exhaust all available
administrative remedies. See 42 U.S.C. § 1997e(a). If an administrative remedy proves
“unavailable” to an inmate, however, he need not exhaust that remedy before bringing suit.
Ross v. Blake, 578 U.S. 632, 642 (2016). Before we can reach the substance of the
administrative exhaustion issue, we must first address the district court’s conclusion that
Gowen forfeited any argument that he exhausted his administrative remedies.
i. Forfeiture
In support of the Officers’ motion for summary judgment, the Officers submitted a
declaration from Enochs stating that “Gowen did not submit any request form or grievance
regarding the allegations underlying this lawsuit.” J.A. 241. The district court determined
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that Gowen failed to respond to this argument, and therefore it was forfeited. Gowen v.
Winfield, 2022 WL 822172, at *2–3. That conclusion was incorrect.
In his verified complaint, Gowen made sworn assertions pertaining to his exhaustion
of available administrative remedies. Gowen claimed that he sent multiple informal
requests and grievances regarding his placement in solitary confinement and that the
Officers told him he could not appeal the ICC decision. That is sufficient. A verified
complaint “based on personal knowledge” must be treated as “the equivalent of an
opposing affidavit for summary judgment purposes.” Goodman v. Diggs, 986 F.3d 493,
498 (4th Cir. 2021) (quoting Williams v. Griffin, 952 F.2d 820, 823 (4th Cir. 1991)); see
also World Fuel Servs. Trading, DMCC v. Hebei Prince Shipping Co., 783 F.3d 507, 516
(4th Cir. 2015) (explaining that a “verified complaint” containing “sworn statements”
based on “personal knowledge” is akin to an “opposing affidavit for summary judgment
purposes” (quoting Williams, 952 F.2d at 823)). Affidavits and verified complaints may
not be cast aside at summary judgment, “even affidavits that are uncorroborated, self-
serving, or filed by pro se prisoners.” Alexander v. Connor, 105 F.4th 174, 183 (4th Cir.
2024). At this stage, we must not “weigh evidence and draw inferences from the facts” in
an effort to “figure out whose version of events is more likely to be true.” Id. at 179.
Because Gowen preemptively addressed the issue of administrative exhaustion in
his verified complaint, he did not have to do so again by submitting an affidavit in response
to the Officers’ motion for summary judgment. See Davis v. Zahradnick, 600 F.2d 458,
459–60 (4th Cir. 1979) (vacating entry of summary judgment because even though plaintiff
“did not respond” to defendants’ affidavits, the “factual allegations of the verified
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complaint . . . precluded summary judgment”). Gowen thus did not forfeit his arguments
pertaining to administrative exhaustion.
ii. Exhaustion of Available Remedies
We next consider whether Gowen submitted sufficient evidence to preclude
summary judgment in favor of the Officers. Of course, if an administrative remedy proves
“unavailable” to an inmate, he is considered to have satisfied the exhaustion requirement.
Ross, 578 U.S. at 642. An administrative remedy is considered unavailable “if a prisoner,
through no fault of his own, was prevented from availing himself of it.” Moore v. Bennette,
517 F.3d 717, 725 (4th Cir. 2008). This includes instances where: 1) the administrative
procedure is “a simple dead end”—in other words, the prison officials are “unable or
consistently unwilling to provide any relief”; 2) the process is “so opaque” that it becomes
practically “incapable of use” such that “no ordinary prisoner can discern or navigate it”;
or 3) the prison “thwart[s] inmates from taking advantage of a grievance process through
machination, misrepresentation, or intimidation.” Ross, 578 U.S. at 643–44. Failure to
exhaust is an affirmative defense for which the Officers bear the burden of proof. See Jones
v. Bock, 549 U.S. 199, 216 (2007).
In his verified complaint, Gowen describes his multiple attempts to utilize the
LADC’s administrative grievance process. With respect to the ICC decision, he presented
sufficient evidence to conclude that LADC’s grievance process was unavailable to him.
Both during the ICC hearing and after the disposition requiring him to remain in solitary
confinement, Gowen alleges that the ICC officers told him that the ICC decision was
“final” and that he could not appeal. J.A. 18, 26 (“After the hearing & disposition[,] I
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verbally expressed my desires to appeal [and] was told there is no appeal.”). Indeed, the
record before us contains no evidence that an inmate has the right to appeal an ICC
decision. The only evidence before us is the LADC grievance policy, which specifically
states that grievances are not permitted in response to “[d]isciplinary hearings.” J.A. 244.
Presumably, this prohibition applies to Gowen’s ICC proceeding because the Officers
contend that the ICC hearing stemmed from Gowen “violat[ing] jail policy.” J.A. 106.
If Gowen possessed no right to appeal the ICC decision, then the administrative
exhaustion requirement could not apply to his claims. It is axiomatic that if there was no
remedy available, there was no remedy for Gowen to exhaust. Ross, 578 U.S. at 642
(holding that while an inmate “must exhaust available remedies,” they “need not exhaust
unavailable ones.”). Even if inmates could grieve an ICC decision—which the record
before us does not reflect—the fact that the Officers told Gowen that he could not appeal
the ICC decision would still amount to thwarting Gowen from using the grievance process
through “machination” and “misrepresentation.” Id. at 644.
Gowen’s sworn statements present facts that he exhausted all available
administrative remedies before the ICC decision. Immediately after he was moved to
A-Pod, Gowen complained orally about having been removed from the general population.
Gowen then submitted several informal inmate request forms. Despite receiving no
response to these requests, Gowen filed formal grievances reiterating the same complaints.
Again, he received no response. Evidence of these acts preclude a claim that Gowen did
not exhaust the first three steps of the LADC administrative grievance process.
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The fourth step of the LADC administrative grievance process required that an
inmate, after receiving a written response to a grievance, appeal to the jail administrator.
Gowen’s sworn statements establish that the Officers prevented Gowen from completing
this final step. Under the LADC grievance process, Gowen could not file an appeal to the
jail administrator without first receiving a response to his earlier grievances. LADC thus,
by failing to respond to Gowen’s grievances, rendered the final step unavailable to him. As
a result, the fourth step in the LADC grievance process was not an “available remedy” to
Gowen. See Moore, 517 F.3d at 725 (stating that “a prisoner has exhausted his available
remedies, even if prison employees do not respond.”). We conclude that Gowen presented
sufficient evidence to preclude summary judgment in favor of the Officers on the
exhaustion issue.
Accordingly, we vacate the summary judgment order and remand for further
proceedings on Gowen’s Fourteenth Amendment claim.
V. Conclusion
We conclude that Gowen adequately pleads a First Amendment retaliation claim
and presented sufficient evidence to preclude summary judgment based on exhaustion of
his Fourteenth Amendment claim. Accordingly, we reverse dismissal of Gowen’s First
Amendment retaliation claim and vacate the district court’s grant of summary judgment.
We remand for further proceedings in accordance with this opinion.
REVERSED IN PART, VACATED IN PART, AND REMANDED