UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-7828
PATRICK L. BOOKER,
Plaintiff - Appellant,
v.
SOUTH CAROLINA DEPARTMENT OF CORRECTIONS; SYLVIA JONES; ANN
SHEPPARD; THIERRY NETTLES,
Defendants - Appellees.
Appeal from the United States District Court for the District of
South Carolina, at Anderson. Mary G. Lewis, District Judge.
(8:12-cv-01957-MGL)
Submitted: March 31, 2014 Decided: August 28, 2014
Before WILKINSON and GREGORY, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Patrick L. Booker, Appellant Pro Se. Mary Elizabeth Sharp,
GRIFFITH, SADLER & SHARP, PA, Beaufort, South Carolina, for
Appellees.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Patrick L. Booker appeals the district court’s order
adopting the recommendation of the magistrate judge and granting
summary judgment on his claim that prison mailroom employee
Sylvia Jones violated his First Amendment rights by filing a
false disciplinary charge against him in retaliation for a
grievance Booker submitted regarding the inspection of his mail.
Booker also contests the district court’s determination that his
Fed. R. Civ. P. 59(e) motion was moot. We affirm in part,
vacate in part, and remand for further proceedings.
We review the district court’s grant of summary
judgment de novo. Robinson v. Clipse, 602 F.3d 605, 607 (4th
Cir. 2010). Summary judgment shall be granted when “there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). “At the summary judgment stage, facts must be viewed in
the light most favorable to the nonmoving party only if there is
a genuine dispute as to those facts.” Scott v. Harris, 550 U.S.
372, 380 (2007) (internal quotation marks omitted). A district
court should grant summary judgment unless a reasonable jury
could return a verdict for the nonmoving party on the evidence
presented. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249
(1986). “Conclusory or speculative allegations do not suffice,
nor does a mere scintilla of evidence in support of [the
2
nonmoving party’s] case.” Thompson v. Potomac Elec. Power Co.,
312 F.3d 645, 649 (4th Cir. 2002) (internal quotation marks
omitted).
For his claim of retaliation to survive summary
judgment, Booker was required to produce sufficient evidence
“that (1) [he] engaged in protected First Amendment activity,
(2) [Jones] took some action that adversely affected [his] First
Amendment rights, and (3) there was a causal relationship
between [his] protected activity and [Jones’] conduct.”
Constantine v. Rectors & Visitors of George Mason Univ., 411
F.3d 474, 499 (4th Cir. 2005). With respect to the second
element, Booker was required to “show that [Jones’] conduct
resulted in something more than a de minimis inconvenience to
[his] exercise of First Amendment rights.” Id. at 500 (internal
quotation marks omitted). Whether Booker’s protected speech was
in fact curtailed by Jones’ conduct, however, is not
dispositive. Rather, the district court was required to also
evaluate whether Jones’ actions “would likely deter a person of
ordinary firmness from the exercise of First Amendment rights.”
Id. (internal quotation marks omitted). This objective inquiry
examines the specific facts of each case, taking into account
the actors involved and their relationship. See Balt. Sun Co.
v. Ehrlich, 437 F.3d 410, 416 (4th Cir. 2006). Importantly,
because “conduct that tends to chill the exercise of
3
constitutional rights might not itself deprive such rights,
. . . a plaintiff need not actually be deprived of [his] First
Amendment rights in order to establish First Amendment
retaliation.” Constantine, 411 F.3d at 500.
Applying this precedent, we conclude that disputes of
material fact undermine the district court’s finding that Booker
suffered no cognizable injury from Jones’ actions. After
receiving Booker’s grievance regarding the handling of his mail,
Jones charged him with the disciplinary offense of “Threatening
to Inflict Harm on/Assaulting an Employee and/or Members of the
Public.” Yet, the record contains no uncontested evidence
plausibly suggesting that the content of Booker’s grievance or
his other conduct warranted that charge, as it is defined by the
South Carolina Department of Corrections. In fact, viewed in a
light most favorable to Booker, the evidence supports a contrary
finding. The evidence supported Booker’s allegation as to the
falsity of the charge, in that (1) Booker was found not guilty
because there was no evidence he physically threatened Jones,
(2) Booker specifically refuted Jones’ averment that he yelled
threats at her, and (3) Jones’ Incident Report levying the 809
charge made no mention of verbal threats or other arguably
intimidating conduct. Under such circumstances, we conclude that
Booker produced sufficient evidence that Jones’ conduct would
likely deter prisoners of ordinary firmness from exercising
4
their First Amendment rights. See, e.g., Santiago v. Blair, 707
F.3d 984, 993 (8th Cir. 2013); see also Gayle v. Gonyea, 313
F.3d 677, 682-84 (2d Cir. 2002). However, we offer no opinion
as to whether Booker has engaged in protected speech or can show
the requisite causal connection between that speech and Jones’
decision to charge him with the disciplinary infraction, leaving
those questions for consideration in the first instance to the
district court on remand.
Further, we conclude that the district court abused
its discretion by denying Booker’s Rule 59(e) motion as moot.
See Robinson v. Wix Filtration Corp., 599 F.3d 403, 407 (4th
Cir. 2010) (stating standard of review). Contrary to the
district court’s apparent determination, it retained authority
to consider Booker’s post-judgment motion despite remanding
under 28 U.S.C. § 1367(c)(3) (2012). See Hudson United Bank v.
LiTenda Mortg. Corp., 142 F.3d 151, 157-59 (3d Cir. 1998); see
also Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 640-41
(2009).
Accordingly, we vacate the grant of summary judgment
on Booker’s claim that Jones retaliated against him for filing a
grievance complaining of the opening of his mail and affirm the
grant of summary judgment on Booker’s remaining federal law
claims. We also vacate the denial of Booker’s Rule 59(e)
motion. Because we reinstate one of Booker’s federal law
5
claims, we vacate the district court’s order remanding Booker’s
state law claims and direct reconsideration of whether
exercising jurisdiction over those claims is appropriate.
Vathekan v. Prince George’s Cnty., 154 F.3d 173, 181 (4th Cir.
1998). We remand for further proceedings consistent with this
opinion. 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
6