UNPUBLISHED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Affirmed in part, vacated in part, and remanded by unpublished 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Unpublished opinions are not binding precedent in this circuit.
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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 
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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 
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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
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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 
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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