Patrick Booker v. South Carolina Dep't of Corrections, No. 13-7828 (4th Cir. 2014)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-7828 PATRICK L. BOOKER, Plaintiff - Appellant, v. SOUTH CAROLINA DEPARTMENT OF CORRECTIONS; SYLVIA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 Affirmed in part, vacated in part, and remanded by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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 judgment de novo. Cir. 2010). genuine the district court s grant summary Robinson v. Clipse, 602 F.3d 605, 607 (4th Summary judgment shall be granted when there is no dispute as to any material fact and entitled to judgment as a matter of law. 56(a). of the movant is Fed. R. Civ. P. 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. (1986). nor does Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 Conclusory or speculative allegations do not suffice, a mere scintilla of 2 evidence in support of [the nonmoving party s] case. 312 F.3d 645, 649 Thompson v. Potomac Elec. Power Co., (4th Cir. claim of 2002) (internal quotation marks omitted). For judgment, his Booker was retaliation required to produce to survive summary sufficient evidence that (1) [he] engaged in protected First Amendment activity, (2) [Jones] took some action that adversely affected [his] First Amendment between rights, [his] and (3) protected there was activity a and causal relationship [Jones ] conduct. Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 499 (4th Cir. 2005). element, Booker was required to With respect to the second 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 Jones fact curtailed dispositive. by conduct, however, is not 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). because conduct that tends to 3 chill the Importantly, exercise of constitutional rights might not itself deprive such rights, . . . a plaintiff need not actually be deprived of [his] First Amendment rights retaliation. in order to establish First Amendment 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 4 firmness from exercising 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 under 28 U.S.C. § 1367(c)(3) (2012). motion despite remanding 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 claims. We also motion. Because judgment on vacate the we Booker s denial reinstate 5 one remaining of of Booker s Booker s federal Rule law 59(e) federal law claims, we vacate the district court s order remanding Booker s state law claims exercising and jurisdiction direct over reconsideration those claims is of whether appropriate. Vathekan v. Prince George s Cnty., 154 F.3d 173, 181 (4th Cir. 1998). We remand for further proceedings consistent with this opinion. legal before We dispense with oral argument because the facts and contentions this court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED IN PART, VACATED IN PART, AND REMANDED 6

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