Keenan v. Ms. Squire et al

Filing 109

ORDER RULING ON REPORT AND RECOMMENDATION: The court adopts the Report, ECF No. 101, and incorporates it herein. Accordingly, Defendants' motion for summary judgment, ECF No. 76, is GRANTED and Plaintiff's motion for preliminary injunction, ECF No. 96, is DENIED. Plaintiff's motions to supplement the record, to submit proposed sur-reply, and to drop all state-law based tort claims are GRANTED. ECF Nos. 106, 107, 108. Plaintiff's motion to review process to serve costs/charges is DENIED AS MOOT. ECF No. 105. Signed by Honorable Sherri A Lydon on 3/10/2025. (agaz, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Christopher M. Kennan,
Plaintiff,
vs.
Ms. Squire; Donnie Stonebreaker, Warden
at Evans CI; Felecia McKie, Inmate
Grievance Branch Chief; and Bryan P.
Sterling, Director of SCDC,
Defendants.

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C/A No.: 9:23-cv-1213-SAL

ORDER

This matter is before the court for review of the Report and Recommendation (the
“Report”) of United States Magistrate Judge Molly H. Cherry, made in accordance with 28 U.S.C.
§ 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.). ECF No. 101. In the Report, the magistrate
judge recommends granting Defendants’ motion for summary judgment, ECF No. 76, and for the
reasons below, the court adopts the Report in full.
BACKGROUND
The court incorporates the magistrate judge’s recitation of Plaintiff’s allegations and of the
undisputed facts disclosed by the record at this stage. In sum, Plaintiff Christopher M. Kennan is
a prisoner incarcerated within the South Carolina Department of Corrections (“SCDC”), currently
housed at Evans Correctional Institution (“ECI”). Proceeding pro se and in forma pauperis, he filed
this civil rights action under 42 U.S.C. § 1983 and 42 U.S.C. § 1985 on March 27, 2023. ECF No.
1. Plaintiff amended his complaint on December 15, 2023. ECF No. 43.
On June 11, 2024, Defendants moved for summary judgment, ECF No. 76, which Plaintiff
opposed on July 19, 2024. ECF No. 88. The magistrate judge issued the Report on November 8,
2024. ECF No. 101. Plaintiff objected to the Report on December 2, 2024, ECF No. 103, and

Defendants filed a timely reply. ECF No. 104. This matter is accordingly ripe for review.
LEGAL STANDARD
The magistrate judge makes only a recommendation to this court. The recommendation
has no presumptive weight, and the responsibility to make a final determination remains with this
court. See Mathews v. Weber, 423 U.S. 261, 270–71 (1976). In response to a recommendation, any
party may serve and file written objections. Elijah v. Dunbar, 66 F.4th 454, 459 (4th Cir. 2023)
(citing 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b)(3)). The district court then makes a de novo
determination of those portions of the report or specified proposed findings or recommendations
to which objection is made. Id. To trigger de novo review, an objecting party must object with
sufficient specificity to reasonably alert the district court of the true ground for the objection. Id.
(quoting United States v. Midgette, 478 F.3d 616, 622 (4th Cir. 2007)). If a litigant objects only
generally, the court need not explain adopting the Report and must “only satisfy itself that there is
no clear error on the face of the record in order to accept the recommendation.” Diamond v.
Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (citing Fed. R. Civ. P. 72 advisory
committee’s note).
An objection is specific so long as it alerts the district court that the litigant believes the
magistrate judge erred in recommending dismissal of that claim. Elijah, 66 F.4th at 460. Objections
need not be novel to be sufficiently specific. Id. But “[i]n the absence of specific objections . . . ,
this court is not required to give any explanation for adopting the recommendation.” Field v.
McMaster, 663 F. Supp. 2d 449, 451–52 (4th Cir. 2009).
DISCUSSION
As a preliminary matter, Plaintiff has filed multiple motions since the magistrate judge’s
Report, including a motion to supplement the record, ECF No. 106, and a motion to submit

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proposed sur-reply, ECF No. 107. Out of an abundance of caution, the court grants both motions
and considers the arguments and evidence referenced in the motions. Plaintiff makes three
objections to the Report, which the court will address in turn below.
I.

Objection One
Plaintiff first objects to the Report’s recommendation to dismiss his First Amendment

access-to-court claim, arguing SCDC’s failure to provide legal supplies hindered his access to the
courts, resulting in the dismissal of one of the three cases he was pursuing under the Administrative
Law Court (“ALC”).
“Prisoners have a constitutional right to ‘adequate, effective, and meaningful’ access to the
courts.” Pronin v. Johnson, 628 F. App’x 160, 161 (4th Cir. 2015) (citing Bounds v. Smith, 430
U.S. 817, 822 (1977)). But as explained by the Supreme Court, to state a cognizable claim, a
plaintiff must demonstrate a specific, actual injury caused by the denial of access. Further,
[t]he injury requirement is not satisfied by just any type of frustrated legal claim.
Nearly all of the access-to-courts cases in the Bounds line involved attempts by
inmates to pursue direct appeals from the convictions for which they were
incarcerated, or habeas petitions. In Wolff v. McDonnell, 418 U.S. 539 [(1974)], we
extended this universe of relevant claims only slightly, to “civil rights actions”—
i.e., actions under 42 U.S.C. § 1983 to vindicate “basic constitutional rights.”
Lewis v. Casey, 518 U.S. 343, 351–52, 354 (1996) (internal citations omitted); see also King v.
Orangeburg Cnty. Ct. of Common Pleas, No. 5:23-CV-1898-TLW, 2023 WL 5622102, at *1
(D.S.C. Aug. 31, 2023) (noting a plaintiff “must show (1) that his efforts to pursue his legal claims
were hindered and (2) that the underlying claim that he was hindered from raising is itself
meritorious”).
The magistrate judge recommended dismissal, finding Plaintiff failed to demonstrate actual
injury or that his underlying ALC claims were meritorious. ECF No. 101 at 24–26. Plaintiff
disagrees, arguing that one of the cases he had pending before the ALC, 22-ALJ-04-0127-AP,
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concerned denial of indigent hygiene bags, 1 a denial that implicates the Eighth Amendment. He
also argues that the dismissal of case 22-ALJ-04-0105-AP resulted from his inability to file a brief
due to the lack of legal supplies for five months. ECF No. 103 at 2–3.
Regarding case ALC 22-ALJ-04-0127-AP, the ALC found that the denial of an indigent
hygiene packet did not implicate a constitutionally protected property interest. See ECF No. 76-6.
Plaintiff claims he was unable to argue an Eighth Amendment violation due to the lack of legal
supplies. But the court finds he failed to demonstrate that his underlying claim was meritorious,
particularly where the case only involved the denial of legal supplies, not hygiene supplies.
For case 22-ALJ-04-0105-AP, which was dismissed for failure to timely file a brief, ECF
No. 76-5, Plaintiff challenges SCDC’s handling of grievances but does not identify any remedy
unavailable in his current claims here. Under Christopher v. Harbury, 536 U.S. 403, 415 (2002),
no injury exists if the same claims can be litigated in a simpler case without a denial-of-accesselement. Plaintiff has also failed to address the magistrate judge’s conclusion that he “has not
shown that his Underlying ALC Case implicated a state-created liberty interest, and without doing
so, he cannot demonstrate his claim is nonfrivolous.” ECF No. 101 at 26.
Accordingly, the court rejects Plaintiff’s first objection.
II.

Objection Two
Plaintiff’s second objection challenges the magistrate judge’s conclusion that he has no

constitutional right to SCDC’s grievance process. He argues the system unfairly prevents inmates
from exhausting grievances by labeling issues as “non-grievable,” thus blocking access to the

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SCDC policy PS-10.08, titled “Inmate Correspondence Privileges,” provides in part that included
in the monthly indigent hygiene packet (“Indigent Bag”) an indigent inmate will be provided one
pencil, eight sheets of paper, and two envelopes without the indigent inmates’ account being
debited. ECF No. 76-12 at 4.
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courts. ECF No. 103 at 3. He asserts this violates his right to “proper exhaustion” under PLRA. Id.
(citing Ross v. Blake, 136 S. Ct. 1850 (2018)).
But inmates have no constitutional right to a grievance system. Adams v. Rice, 40 F.3d 72,
75 (4th Cir. 1994); Booker v. S.C. Dep’t of Corr., 855 F.3d 533, 541 (4th Cir. 2017). The PLRA
also requires inmates to exhaust administrative remedies only if they are “available. Under Ross,
a remedy is unavailable if it is a “dead end,” is “opaque,” or if prison officials prevent its use
through “machination, misrepresentation, or intimidation.” 136 S. Ct. at 1859–60.
Plaintiff argues that courts rely on Adams, which predates the PLRA, but cites no case law
questioning this precedent post-PLRA. He seeks to reverse the burden of proof, arguing that SCDC
manipulates the grievance process to block exhaustion and secure dismissals for failure to exhaust.
But it is Plaintiff’s burden to demonstrate that administrative remedies were unavailable. See
Graham v. Gentry, 413 F. App’x 660, 663 (4th Cir. 2011). His argument to shift this burden is
contrary to established law. Accordingly, the court rejects his second objection.
III.

Objection Three
Plaintiff also challenges the magistrate judge’s recommendation to dismiss his First

Amendment retaliation claim. To prevail, he must demonstrate that (1) he engaged in
constitutionally protected First Amendment activity; (2) Defendants took an action that adversely
affected that protected activity; and (3) there was a causal relationship between Plaintiff’s
protected activity and Defendants’ conduct. See Martin v. Duffy, 977 F.3d 294, 299 (4th Cir. 2020).
The Fourth Circuit has cautioned that courts should treat retaliation claims in the prison context
“with skepticism because every act of discipline by prison officials is by definition retaliatory in
the sense that it responds directly to prisoner misconduct.” Cochran v. Morris, 73 F.3d 1310, 1317
(4th Cir. 1996) (citations omitted).

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The magistrate judge found it undisputed that Plaintiff engaged in constitutionally
protected First Amendment activity when he filed grievances and that, for purposes of summary
judgment, a genuine issue of material fact exists as to whether McKie implemented a 60-day
grievance limitation as retaliation. ECF No. 1-1 at 29–30.
Relying on Martin, the magistrate judge noted the Fourth Circuit’s recognition of two
types of First Amendment retaliation claims: “(1) claims where the principal dispute is whether
protected or unprotected conduct caused a defendant to take adverse action, and (2) claims where
the principal dispute is whether a defendant took adverse action for retaliatory purposes.” 977 F.3d
at 303 (citing Greenwich Citizens Comm., Inc. v. Cntys. of Warren & Washington Indus. Dev.
Agency, 77 F.3d 26, 33 (2d Cir. 1996)). In the first category—dual-motive cases—the defendant’s
adverse action occurs after the plaintiff engages in both protected and unprotected conduct. Id. “In
th[e] second category of cases—‘unitary event’ cases—the plaintiff’s protected conduct is a single
event ‘that could prompt either a permissible or an impermissible reason on the part of the
defendant to act.’” Id. (quoting Greenwich, 77 F.3d at 33). The Fourth Circuit found that the
grievance in Martin was a unitary event, and it held that in unitary event retaliation cases,
application of the same-decision test “asks not whether the defendant would have reached the same
decision absent the plaintiff’s protected conduct, but whether the defendant would have reached
the same decision absent a retaliatory motive.” Id. at 303–04.
The magistrate judge classified Plaintiff’s claim as a unitary event, where the relevant
question is whether McKie would have imposed the grievance limitation absent a retaliatory
motive. Plaintiff disagrees, arguing that the policy was inconsistently applied and that he exceeded
grievance limits in prior months without consequence. He argued that the magistrate judge erred
as follows:

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In both November of 2021 and again in December of 2022 I exceeded five step 1
grievance submissions for the month[,] and I received no warning nor was I placed
on “Limitations.” In September of 2022 I wrote eleven step 1 grievances. I was not
placed on limitations until my submission total[led] at least ten. No limitations were
imposed for grievances # 6, 7, 8, or 9, and only after I wrote an ARTSM to Mc.
McKie mentioning that Ms. Black . . . told me that IGB was looking to ban me for
filing too many grievances that made it to step 2.
ECF 103 at 4–5. But inconsistent application alone fails to establish retaliatory intent. Nor does
Plaintiff identify any unprotected conduct that would require a dual-motive analysis. See, e.g.,
Martin, 977 F.3d at 303–04 (“To wit, in ‘unitary event’ retaliation claims, the same-decision test
asks not whether the defendant would have reached the same decision absent the plaintiff’s
protected conduct, but whether the defendant would have reached the same decision absent a
retaliatory motive.”). Here, there is no dispute that McKie could not have reached the same
decision—placing Plaintiff on grievance limitation status—absent Plaintiff’s grievance activities.
Thus, there is no question the magistrate judge applied the correct analysis.
Plaintiff also disputes the magistrate judge’s conclusion that “McKie has demonstrated that
the decision to impose a sixty-day limitation would have been reached absent a retaliatory motive.”
ECF No. 101 at 32. As McKie attested:
Inmate Christopher Michael Kennan, SCDC #385016, was placed on Grievance
Limitations status for a sixty (60) day period by me in my capacity as Inmate
Grievance Coordinator/Branch Chief of Inmate Grievance Branch on October 3,
2022, for abuse and misuse of the grievance system. This limitation was imposed
for the Inmate’s filing of an excessive number of grievances for duplicate issues,
multiple issues, and other numerous failures to follow the Grievance Policy . . . .
Grievance limitation may not be applicable to matters that relate to medical
conditions, emergency situations, custody reductions, Prison Rape Elimination Act
of 2003 (PREA), Americans With Disability Act of 1990 (ADA), or other matters
that determine should not be subject to this Limitation. Each Grievance would be
reviewed and managed accordingly. Grievant/Plaintiff was advised to seek Sick
Call if he deemed necessary to address illness.
ECF No. 76-4 at 12–13.
In his motion to supplement the record, Plaintiff submitted emails that he states, “offer
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insights into her attitude and directives which led to her placing me on ‘Limitations’ as are the
relevant creation dates of these emails.” ECF No. 106. But a review of these emails does not
support Plaintiff’s argument. See ECF No. 106-2. For example, in one email chain, McKie is
directing another SCDC employee on the proper wording for rejecting one of Plaintiff’s
grievances, noting that she has been in discussion with the legal department to make sure the
wording is appropriate and because “Keenan is fine-tooth picking every word and also raising
concerns by the ALC about our Grievance Form.” Id. at 4. However, this email, dated December
21, 2022, does not indicate retaliatory animus, particularly where this exchange occurred months
after Plaintiff was placed on grievance limitations, and where he has provided no evidence or even
argument concerning this particular grievance, including that it was improperly rejected.
Plaintiff also argues the policy was inconsistently applied and disputes the classification of
his grievances. See ECF No. 103 at 4–5. But, as stated above, these allegations do not indicate a
retaliatory animus necessary to sustain Plaintiff’s First Amendment retaliation claim and do not
address the magistrate judge’s conclusion that McKie imposed a 60-day limitation on Plaintiff’s
ability to file grievances based on his overuse of the system, where it is undisputed that:
he filed grievances in excess of the five-per-month limitation, nor has he produced
evidence showing that any policy exceptions were applicable to his excess
grievances. Instead, Plaintiff has asserted that his rewritten submissions should not
be included as part of his five-month limit; but that assertion is contrary to SCDC’s
Inmate Grievance System policy. See ECF No. 76-10 at 7. Thus, Plaintiff has not
shown or established a question of fact surrounding Defendant McKie’s
explanation, and Defendant McKie has met her burden to rebut any prima facie
case of retaliation by showing that she would have imposed Plaintiff’s grievance
limitation absent a retaliatory motive.
ECF No. 101 at 33. 2

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This court has rejected a plaintiff’s claims that restrictions on his ability to place sick calls and
file grievances were in retaliation for his exercise of his First Amendment rights. Collins v. Riddell,
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For these reasons, the court rejects Plaintiff’s third objection. 3
CONCLUSION
For these reasons, the court adopts the Report, ECF No. 101, and incorporates it herein.
Accordingly, Defendants’ motion for summary judgment, ECF No. 76, is GRANTED and
Plaintiff’s motion for preliminary injunction, ECF No. 96, is DENIED. Plaintiff’s motions to
supplement the record, to submit proposed sur-reply, and to drop all state-law based tort claims 4
are GRANTED. ECF Nos. 106, 107, 108. Plaintiff’s motion to review process to serve
costs/charges is DENIED AS MOOT. ECF No. 105.
IT IS SO ORDERED.

March 10, 2025
Columbia, South Carolina

Sherri A. Lydon
United States District Judge

No. 8:18-CV-01580-MGL-JDA, 2019 WL 3719490, *8 n.9 (D.S.C. July 2, 2019) (recommending
summary judgment on prisoner’s First Amendment retaliation claim based on restrictions placed
on his ability to place sick calls and file grievances), report and recommendation adopted, No. CV
8:18-1580-MGL, 2019 WL 3717987 (D.S.C. Aug. 7, 2019). The court explained that “Plaintiff
points to nothing in the record that would tend to refute Defendants’ contention that the limitations
were a response to Plaintiff’s abusing the kiosk system by filing multiple requests per day and
filing grievances concerning issues that had already been addressed. Absent indication that the
restrictions were based on retaliatory animus, any claim of retaliation fails.” Id. (internal citations
omitted) (citing Glenn v. Delbalso, No. 1:13-cv-02730, 2016 WL 930722, at *10 (M.D. Penn. Mar.
11, 2016); Ayers v. Uphoff, 1 F. App’x 851, 856 (10th Cir. 2001)).
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Given the court’s order above, the court denies as moot Plaintiff’s pending motion to review
process to serve costs/charges where he states his motion seeks certain information relevant to
settlement negotiations with Defendants. ECF No. 105.
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Plaintiff filed a motion to drop all state-law based tort claims. ECF No. 108. To the extent there
are any such claims in his amended complaint, that motion is granted. This order and the Report
otherwise address the constitutional claims and grant summary judgment on those.
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