UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ GARY WAYNE TURNER, Plaintiff - Appellant,

v. FRANCES FALK, Warden; ROBERT BUTCHER, Major; JACKSON, Lieutenant; INFANTE, Lieutenant, Defendants - Appellees. No. 15-1010 (D.C. No. 1:13-CV -02957-PAB-MJW) (D. Colo.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before KELLY , BACHARACH , and MORITZ , Circuit Judges.

________________ _________________ Gary Wayne Turner is a Colorado Depart ment of Corrections (CDOC) inmate. Proceeding pro se, he sued several prison employees under 42 U. S.C. § 1983, arguing they retaliated against him for exercising his First Ame ndment right to free speech. The district court dismissed Turner’s claims for various reasons. Turner now appeals and we affirm.

* After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not ma terially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### November 27, 2015
Elisabeth A. Shumaker Clerk of Court2 I. Background Turner had the opportunity to take a co llege-level “customer services” course in prison. As part of the c ourse, the instructor directed her students to write an essay applying “the Eight Steps of Conflict Partners hip” discussed in class. R. at 24. Turner’s instructor previously had warn ed the class against making inappropriate comments, and she provided detailed instructions for completing the assignment, including examples of appropria te essay subjects. Neverthe less, Turner submitted an essay titled “Domestic Violence – The Myth,” in which he e xpressed a desire to “slap the shit out of” and have anal sex with a wo man. R. at 24-25. As a result, Turner was no longer allowed to participate in the course and he was disciplined for violating the prison’s rule prohibiting sexual harassment. Turner subsequently sued his instructor 1 and other prison employees alleging First Amendment retaliation under 42 U.S.C. § 1983. The district court dismissed Turner’s claims against hi s instructor for untimely service. The remaining defendants filed a motion to dismiss, argui ng Turner’s amended co mplaint failed to state a viable claim for relief, Fed. R. Ci v. P. 12(b)(6), and also arguing they were entitled to qualified immunity . The district court gran ted the motion and dismissed Turner’s remaining claims.

1 Turner sued his instructor under th e names “Teacher I. Ms. Sharp” and “Teacher I. Ms. Dummit.”3 On appeal, Turner argues the district court erred in dism issing his claims against his instructor and in granting the remaining defenda nts’ motion to dismiss. We lack jurisdiction to a ddress Turner’s first argumen t and reject his second. II. Jurisdiction and Standard of Review Our jurisdiction is limited to review ing orders designated in the notice of appeal. See Fed. R. App. P. 3(c)(1)(B); Foote v. Spiegel , 118 F.3d 1416, 1422 (10th Cir. 1997). Turner’s notice challenges only the di strict court’s ruling on the defendants’ “motion to dismis s amended complaint.” We can ’t fairly infer an intent to challenge any other orders or the final judgment. See Sines v. Wilner , 609 F.3d 1070, 1074 (10th Cir. 2010) (“A mistake in designati ng the judgment appealed from is not always fatal, so long as the intent to app eal from a specific ru ling can fairly be inferred by probing the notice and the othe r party was not misl ed or prejudiced.” (internal quotation marks omitted)). We therefore limit our review to the order granting the defendants’ motion to di smiss Turner’s am ended complaint. We review the district court’s ruli ng on a motion to dismiss de novo. Gee v. Pacheco , 627 F.3d 1178, 11 83 (10th Cir. 2010). III. Analysis Turner argues the district court erre d in granting the defendants’ motion to dismiss because his complaint contained fact ual allegations suffic ient to support a First Amendment retaliation claim and to overcome a qualified immunity defense.4 Further, he contends the c ourt should have ruled on the constitutionality of his essay. 2 We agree with the district court that Turner’s complain t failed to state a plausible claim for relief and we thus affirm its decision without addressing Turner’s other arguments. A complaint must contain “a short and plain statement of the claim showing that the [plaintiff] is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “To survive a motion to dismiss, a complaint must contain sufficient factual ma tter, accepted as true, to state a claim to relief that is plausible on its face.” Gee , 627 F.3d at 1184 (quoting Ashcroft v. Iqbal , 556 U.S. 662 (2009)). A claim is facially plausible when the court can draw a reasonable inference from the fact s alleged that the de fendants are liable. See id

. To prove the defendants’ liability for reta liation, Turner was required to show: (1) he was engaged in a cons titutionally protected activ ity; (2) the defendants caused him “to suffer an injury that would chill a person of ordinary firmness from continuing to engage in that activity ”; and (3) the defendants’ action “was substantially motivated as a response to [Turner’s] ex ercise of constitutionally protected conduct.” Shero v. City of Grove , 510 F.3d 1196, 1203 (10th Cir. 2007). To satisfy the third prong, Tu rner was required to show th at “but for the retaliatory motive, the incidents to whic h he refers, including the disciplinary action, would not have taken place.” Peterson v. Shanks , 149 F.3d 1140, 1144 (10th Cir. 1998).

2 Turner filed his brief pro se, so we construe his arguments liberally. United States v. Pinson , 584 F.3d 972, 97 5 (10th Cir. 2009).5 The district court focused on the third prong, concluding Turner failed to state a plausible claim that he w ouldn’t have been disciplined “but for the [defendants’] retaliatory motive.” See id . We agree. Turner admitted in his complaint that he disobeyed instructions and violated prison rules, pr ompting the defendants to discipline him. Specifically, Turner ac knowledged that he “c hose to violate the [teacher’s] instructions . . . and was terminated [from class] for that reason,” and that he was convicted of violating the prison’ s Code of Penal Discipline because he “subject[ed] another pers on to written statements of a sexual nature.” R. at 89, 92. Because we can’t reasonably infer from Turn er’s allegations that the defendants had a retaliatory motive—much le ss acted upon it—we conclude the district court did not err in dismissing Turner’s complaint on this ground. Notably, the district court could have also dismissed Turner’s complaint for failing to satisfy the first pr ong, which requires a plaintiff to show he was engaged in a constitutionally protected activity, see Shero , 510 F.3d at 1203. Prisons are unique. “Government conduct that would be unaccep table, even outrageous, in another setting may be acceptable, even necessary, in a prison.” Gee , 627 F.3d at 1185. “[P]risoners’ rights may be restricted in ways that would raise grave First Amendment concerns outside the prison context.” Id . at 1187 (quoting Thornburgh v. Abbott , 490 U.S. 401, 407 (1989)). “Conse quently, a prisoner claim will often not be plausible unless it recites facts that might well be unnece ssary in other contexts.” Id . at 1185.6 An inmate does not have a First Amendment right to ma ke violent, explicit, or harassing statements, at least when he has been warned not to. See Kervin v. Barnes , 787 F.3d 833, 835 (7th Cir. 2015) (concluding that “back talk by prison inmates to guards, like other speech th at violates prison discipli ne, is not constitutionally protected”); Lockett v. Suardini , 526 F.3d 866, 874 (6th Ci r. 2008) (holding that prisoner’s characterization of h earing officer as “a foul a nd corrupted bitch” violated prison regulation prohibiting in solent behavior and wasn ’t protected by the First Amendment); Cowans v. Warren , 150 F.3d 910, 912 (8th Cir. 1998) (concluding that prisoner disciplined for “using abusive and insulting language” in violation of prison rule failed to state claim for retaliation becau se he was disciplined for acts he wasn’t entitled to perform); Ustrak v. Fairman , 781 F.2d 573, 580 (7th Cir. 1986) (finding that a prison rule prohibiting “being disrespectful to any employee of the institution . . . swearing, cursing, or us[ing ] . . . any other vulgar, abusive, insolent, threating, or improper language” did not violate an inmate’s First Amendment rights). As these cases illustrate, prison restrictions on inmate expression are common. Therefore, to raise a plausibl e claim, an inmate must a llege facts showing that an imposed restriction violated prison regul ations or that the restriction was unconstitutional under the circumstances. See Gee , 627 F.3d at 1190. Turner’s allegations do neither. Rath er, he generally a sserts that various prison employees violated his First Am endment rights by dismissing him from the course and disciplining him. His complain t does not raise a plausible claim that the7 First Amendment protects an inmate’s right to submit a violent, sexually explicit essay after being instructed against it, a nd therefore fails on th is ground as well. Because Turner’s complaint does not alle ge facts sufficient to support a First Amendment retaliation claim, we affirm the district court’s order granting the defendants’ motion to dism iss. Having concluded th e district court properly dismissed Turner’s complaint, we need not address his remaining claims regarding qualified immunity and the cour t’s failure to rule on the c onstitutionality of his essay. We grant Turner’s renewed motion to pr oceed without prepayment of fees, but remind him he must continue making partial payments un til the entire fee has been paid.

Entered for the Court
Nancy L. Moritz Circuit Judge