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           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fifth Circuit

                                      No. 14-30205                                FILED
                                                                              April 28, 2016
                                                                             Lyle W. Cayce
CARLWYNN J. TURNER,                                                               Clerk

                                                 Plaintiff - Appellant

v.

N. BURL CAIN; DARREL VANNOY; LESLIE DUPONT,

                                                 Defendants - Appellees



                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:12-CV-598


Before JONES, WIENER, and HIGGINSON, Circuit Judges.
EDITH H. JONES, Circuit Judge:*
       In 2012, Plaintiff-Appellant Carlwynn J. Turner, a prisoner at the
Louisiana Department of Corrections (“LDOC”), brought this pro se civil rights
action against Defendant-Appellees N. Burl Cain, warden of the Louisiana
State Penitentiary (hereinafter “LSP” and colloquially “Angola”), as well as his
subordinates, David Vannoy, a deputy warden, and Leslie Dupont, an
assistant warden. Turner alleged that Warden Cain, Vannoy, and Dupont


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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transferred him from the LSP after he exercised his First Amendment right of
free speech. This case involves a novel prisoner free speech claim that is
inadequately discussed in the district court. We affirm in part, reverse in part,
and remand.
                                            I.
                                   Facts & Proceedings
       The events giving rise to Turner’s claim began on April 16, 2011, while
he was selling crafts to members of the public attending the Angola Prison
Rodeo. As several potential buyers negotiated with Turner, he told them that
it would be impracticable for him to accept the prices they were offering.
Specifically, he remarked that Warden Cain imposed “taxes” on each item he
sold. Turner describes the exchange as follows:
                      [H]e explained to the people standing around his
               hobby craft booth that he could not reduce his hobby
               craft prices because Warden Cain takes 18% . . . from
               individual cash sales . . . and 22% . . . from individual
               credit card sales. [He] shared this information with
               the public because it affected his hobby craft business.
               The times he sold and how he sold them determined
               the worth and profit of his business. It either caused
               him to make a profit or loose [sic] a profit. To reduce
               his prices would subject him to more of a profit lost
               than a profit gain. Mainly because of what it cost to
               make a product, and the percentage that is taken from
               the sale of it. He explained his prices and position to
               settle the mind of the customer, and he wanted to
               make it clear that he was not being mean, he was just
               doing business in the free market.
Such taxes were, in fact, imposed by Warden Cain. 1



       1  According to Warden Cain himself, “taxes were raised for the following
reasons: . . . 11% tax is used to rebuild, maintain, or add new [hobby craft facilities,] . . . 9%
[Feliciana] Parish tax . . . , 2-3% taxes [sic] were charged by [c]redit [c]ard [c]ompanies . . . .”
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       Turner alleges that Dupont’s wife overheard Turner’s remarks about the
taxes and repeated them to Dupont. He further alleges that, later that day,
Dupont removed Turner from the Rodeo grounds, telling Turner that “his
wife . . . informed him that [Turner] was telling the people about the inmates
being taxed a percentage from the sale of their hobby craft,” and that, “in anger,
[Dupont] vehemently” prohibited Turner from returning to the Rodeo grounds
to sell crafts.
       Turner also alleges that he “was never informed by . . . Cain during the
‘[R]odeo prep meetings’ that inmates were not allowed to talk about the tax
percentages with the public” and that “there w[ere] no written policies or
posted memorandums that informed inmates [who] sold hobby craft [that] they
could not tell potential customers about the 18% and 22% tax inmates pay upon
the sale of their hobby craft.” In other words, he alleges that he “had no
knowledge that if he shared the tax information with [members of the] public
he would be punished for doing so.” There is nothing in the record that suggests
any restrictions on his speech existed.
       Turner then alleges that Dupont did not even “write a disciplinary
report . . . charging [Turner] with any rule violations.” Despite the absence of
any prior restraint on his speech, he was added to a list of 15-or-so “Inmates
That [H]ad Rodeo Violations.” The list indicated that he had “Bribe[d] the
Public” 2 (and that most of the others had “G[iven] Interview[s] To Media” or
“Failed Drug Test[s]”).




The parties do not seem to dispute that these taxes were levied against the seller, not the
buyer.
       2 Although prison regulations presumably prohibit such conduct, neither party asserts
that is what actually took place.

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      Turner also alleges that, two days after he was removed from the Rodeo,
Dupont met with Warden Cain about each of the violations that had occurred
during the Rodeo and that, ten days after that, Warden Cain had transferred
Turner and most, if not all, of the other prisoners on Dupont’s list from LSP to
other LDOC facilities. Turner avers that, as they were being transferred,
Vannoy “met with [them at the gate] and said that . . . Warden Cain don’t want
to talk to any of you[;] he is angry and displeased with your behavior during
the [R]odeo because you did whatever it was you did, he has decided to transfer
you.” Turner was transferred to Hunt Correctional Center, where he spent
approximately 59 days, before being transferred again, this time to David
Wade Correctional Center.
      Turner brought this action, asserting claims against Warden Cain,
Dupont, and Vannoy in their official and individual capacities. He alleges
specifically that they violated his First Amendment rights by retaliating
against him for exercising his right to free speech at the Rodeo. Turner next
alleges that, as a result of that retaliation, he (1) suffered a number of
hardships as a result of the transfers, (2) lost his lucrative job, (3) was
separated from some of his belongings, and (4) remains isolated from his
friends and family. He seeks compensatory and punitive damages.
      Warden Cain, Vannoy, and Dupont moved to dismiss the claims under
Fed. R. Civ. P. 12(b), asserting that Turner had failed to state a claim and that
they were entitled to Eleventh Amendment immunity and qualified immunity.
The magistrate judge recommended that the district court dismiss the claims
except for that against Warden Cain in his individual capacity. The district
court adopted the magistrate judge’s recommendations over Turner’s
objections. The action proceeded and, in due course, Turner and Warden Cain
each moved for summary judgment under Fed. R. Civ. P. 56. The magistrate

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judge recommended that the district court dismiss Turner’s remaining claim,
again over Turner’s objections. Turner has timely appealed. 3
                                           II.
                                       DISCUSSION
       On appeal, Turner challenges both the dismissal and the adverse
summary judgment. He alleges that the LSP officials retaliated against him
for his discourse with members of the public. 4 “To prevail on a claim of
retaliation, a prisoner must establish (1) a specific constitutional right, (2) the
[prison official’s] intent to retaliate against the prisoner for his or her exercise
of that right, (3) a retaliatory adverse act, and (4) causation.” 5 The “retaliatory
adverse act” must be “more than de minimis retaliation.” 6
A.     Motion to Dismiss
       Turner alleges that Dupont and Vannoy retaliated against him for his
remarks regarding the taxes imposed by Warden Cain. We review de novo an
order granting a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). 7 “To
survive a motion to dismiss, a complaint must contain sufficient factual matter,




       3 This court granted Turner leave to proceed in forma pauperis and ordered the parties
to submit briefs. Neither Dupont nor Vannoy filed appellee briefs, but this does not affect
their interests, only their ability to participate in oral argument. Fed R. App. P. 31(c).
       4  The district court correctly construed Turner’s complaint as containing both official
capacity and individual capacity claims against the defendants and dismissed each of the
official capacity claims under Rule 12(b). Because Turner now suggests that he only intended
to bring individual capacity claims against them, he has waived any challenge to the district
court’s disposition of his official capacity claims.
       5Morris v. Powell, 449 F.3d 682, 684 (5th Cir. 2006) (quoting McDonald v. Steward,
132 F.3d 225, 231 (5th Cir. 1998)).
       6   Id. at 684–85.
       7   Lampton v. Diaz, 639 F.3d 223, 225 (5th Cir. 2011).

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accepted as true, ‘to state a claim to relief that is plausible on its face.’” 8 We
consider the complaint “in the light most favorable to the nonmoving party,”
because motions to dismiss under Rule 12(b)(6) are “‘viewed with disfavor and
[are] rarely granted.’” 9
      The district court adopted the magistrate judge’s determination that the
retaliatory act was the transfer itself. If properly alleged, such an act exceeds
the de minimus threshold because, even though a prisoner has no
constitutional right to be housed in a particular institution, 10 an otherwise
permissible act may nonetheless violate the constitutional rights of a prisoner
if ordered in retaliation for the exercise of those rights. 11 Turner alleges that
Dupont was involved with or caused the transfer by telling Warden Cain about
Turner’s remarks and that Vannoy was involved with or caused the transfer
because he told Turner and the other prisoners that the transfer was
retaliatory. But what Turner alleges, taken as true, does not establish this.
He merely alleges that Dupont provided the information on which Warden
Cain made his decision and that Vannoy was aware of that decision. From
Turner’s allegations, it appears that the decision to transfer him was Warden
Cain’s alone. Accordingly, the district court did not err in determining that
Turner had not stated a claim of retaliation against Dupont and Vannoy for
the transfer itself.




      8 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 547 (2007)).
      9 Leal v. McHugh, 731 F.3d 405, 410 (5th Cir. 2013) (quoting Turner v. Pleasant,
663 F.3d 770, 775 (5th Cir. 2011)).
      10   Meachum v. Fano, 427 U.S. 215, 225 (1976).
      11   See Morris, 449 F.3d at 685–87.

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      However, Turner sufficiently alleges that DuPont was involved in his
removal from the Rodeo grounds, which constituted a retaliatory act for his
“speech” about Warden Cain’s taxes. He makes this clear both in his complaint
and in in his objections to the magistrate judge’s recommendation that the
district court grant the LSP officials’ motion to dismiss.                  As Turner is
proceeding pro se, the complaint and objections are “to be liberally
construed.” 12 Further, the act of removing Turner from the Rodeo grounds
meets the de minimus threshold. 13 This was not a mere reassignment of prison
jobs. It was the denial of Turner’s opportunity to sell his crafts, to profit from
those sales, and to interact with members of the public. 14 It also disrupted his
longstanding record of good behavior at the LSP. Turner also alleges that he
would not have mentioned the taxes if he had known that doing so would result
in his removal from the Rodeo grounds.
      It is also apparent from Turner’s allegations that the restriction on his
speech—if made known to him in advance—would have deterred a person of
ordinary firmness from speaking. Consequently, the district court erred in
dismissing Turner’s claim of retaliation against Dupont for the removal.
B.    Motion for Summary Judgment
      We review de novo an order granting a motion for summary judgment
pursuant to Rule 56.           “Summary judgment is appropriate if the record
demonstrates ‘that there is no genuine dispute as to any material fact and that


      12   Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal quotation marks omitted).
      13   Morris, 449 F.3d at 687.
      14 An article about the Rodeo in Corrections Today explains: “[H]obby shop privileges
are highly valued at the prison, which hosts annual events featuring the selling of inmate
arts and crafts. These events have been hugely successful and inmate hobby crafters can
make significant amounts of revenue from their participation.” Cathy Fontenot, Managing
Angola’s Long-Term Inmates, CORRECTIONS TODAY 119 (Aug. 2001).

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the movant is entitled to judgment as a matter of law.’” 15 “A genuine issue of
material fact exists if the record, taken as a whole, could lead a rational trier
of fact to find for the non-moving party.” 16 “When considering a motion for
summary judgment, [we] construe the evidence and draw all reasonable
inferences in the light most favorable to the non-moving party.” 17
       The district court determined that there was no genuine issue of material
fact because Turner had failed to establish that he was exercising or
attempting to exercise a specific constitutional right when he commented on
the taxes. The district court characterized Turner’s remarks as a grievance
directed at LSP officials. It explained, based on our opinion in Freeman v.
Texas Dep’t of Criminal Justice, 18 that Turner, as a prisoner, retained a right
of free speech only to the extent he exercised that right in a manner consistent
with his status as a prisoner. Because Turner had not raised the “grievance”
in these administrative channels, his speech was not protected. 19
       Critical to this determination are (a) whether Turner’s speech was
protected and (b) whether the LSP officials could restrict it. Warden Cain
suggests that Turner had “no rights [sic] to participate in [the] Rodeo simply
because it is a privilege afforded to him and not a Constitutional right.” This
misses the point. Turner does not contend that he had a right to participate in



       15   Fed. R. Civ. P. 56(a).
       16 Harris v. Serpas, 745 F.3d 767, 771 (5th Cir. 2014) (quoting Tubos de Acero de
Mexico, S.A. v. Am. Int’l Inv. Corp., Inc., 292 F.3d 471, 478 (5th Cir. 2002)), cert. denied,
135 S. Ct. 137 (2014).
       17   See Kitchen v. Dallas Cty., Tex., 759 F.3d 468, 476 (5th Cir. 2014).
       18   369 F.3d 854, 864 (5th Cir. 2004).
        The court did not rule on any other issues raised by the parties on summary
       19

judgment, and we likewise do not opine on them.

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the craft sale at the Rodeo or that the prison officials impinged such a right.
By participating with their permission, Turner was entitled to speak with the
public during the event and was expected to do so. Turner insists that, once
he was allowed to speak with the public, the prison officials could not limit his
speech without justification.
      The district court determined that the content of Turner’s speech was a
grievance and, because he spoke in a prison and as a prisoner, the speech was
unprotected if expressed outside the grievance procedures. This classification
of Turner’s speech, however, is not supported by the record. Turner’s speech
was not a grievance because it had nothing to do with his status as a prisoner.
Turner made his remarks in an effort to explain that, because of the taxes, he
could not reduce the price of his crafts. Significantly, Turner was addressing
the public, not a prison official or another prisoner. 20 As far as we can tell,
none of the justifications for restricting a prisoner’s speech to a grievance
procedure is present. There is nothing to suggest that Turner’s remarks to the
public had the potential for inciting violence, disturbing order in the prison, or
creating security concerns.           He was there because prison officials had
permitted him to engage in a public event attended by large numbers of the
public on prison grounds. Under these circumstances, Turner’s speech, was
not in the form of a grievance, and may not have been inconsistent with his
status as a prisoner. Given that Turner’s speech was not a grievance, LSP
officials could not restrict his speech based on the LSP grievance procedure.
      Whether there is any other justification for sanctioning Turner’s speech,
we cannot say; the law, as well as the surrounding circumstances, requires
more careful exegesis. Undoubtedly, “a prison inmate retains those First


      20   Turner asserts he did not know he was speaking to the spouse of an LSP official.

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Amendment rights that are not inconsistent with his status as a prisoner or
with the legitimate penological objectives of the corrections system.” 21
However, “when a prison regulation [or action] impinges on inmates’
constitutional rights, the regulation [or action] is valid if it is reasonably
related to legitimate penological interests.” 22              Because the district court
incorrectly labeled Turner’s speech a grievance, we remand for the district
court to consider whether his speech was otherwise consistent with “legitimate
penological interests.” The Supreme Court in Turner identified a number of
considerations relevant to this determination:                 “whether a ‘valid, rational
connection’ exists between the regulation and the legitimate interest put forth
to justify it; whether ‘alternative means of exercising the right . . . remain open
to prison inmates’; ‘the impact accommodation of the asserted constitutional
right’ will have on prison officials and inmates; and the availability of ‘obvious,
easy alternatives’ to the challenged regulation.” 23 The district court should
consult these factors and determine whether the defendants could have limited
Turner’s speech.
       This determination will inform whether Turner’s speech was
protected—or not—under the First Amendment. We remand for the district
court to make this determination. To facilitate the inquiry, the court should
appoint counsel for Turner.            The court should also bear in mind that Cain
offered in his summary judgment motion only a general justification for his




       21   Pell v. Procunier, 417 U.S. 817, 822 (1974); see also Freeman, 369 F.3d at 863.
       22   Turner v. Safley, 482 U.S. 78, 89 (1987).
       23Watkins v. Kaspar, 599 F.3d 791, 796–97 (7th Cir. 2010) (alteration in original)
(quoting Turner, 482 U.S. at 89–90).

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contention that the speech was unprotected. We opine no further on the facts
and issues that the court will confront on remand.
                              CONCLUSION
     For the foregoing reasons, the district court’s judgment dismissing
Vannoy is AFFIRMED; the judgments dismissing DuPont and granting
summary judgment to Warden Cain are REVERSED and REMANDED for
further proceedings consistent herewith, including appointment of counsel for
Turner.




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WIENER, Circuit Judge, concurring:
         I concur entirely in the majority’s holding that Turner’s speech was not
a “grievance” and therefore not per se unprotected merely because it might
have been made outside the LSP’s grievance process. Yet, I would go further:
Rather than remanding for the district court to consider whether Turner’s
speech might be unprotected because Warden Cain had some other legitimate
penological reason for restricting it, I would hold that it is protected because
there is no evidence of such a reason—nor could there be.
         To begin with, the first element of a prisoner’s retaliation claim, viz.,
whether prison officials may have restricted a prisoner’s speech, rendering it
“unprotected,” is separate and distinct from the second, third, and fourth
elements, viz., whether prison officials intended to restrict that speech,
whether the speech was restricted through some regulation or action, and
whether the prison officials caused the regulation or action restricting the
speech. Common sense dictates that we must not read the second, third, and
fourth elements into the first. Just because Warden Cain would not have been
permitted to restrict Turner’s speech, rendering it protected, does not mean
that he intended to restrict it, that it was restricted, or that he caused it to be
restricted. Likewise, the existence of genuine issues of material fact as to the
second, third, and fourth elements do not necessarily preclude resolution of the
first.
         This “inquiry into the protected status of speech is one of law, not fact.” 1
Regardless of what actually happened, Turner’s speech is either “protected” or
it is not. On appeal, “we are compelled to examine for ourselves the statements



        Connick v. Myers, 461 U.S. 138, 148 n.7 (1983); see Stewart v. Parish of Jefferson,
         1

951 F.2d 681, 683 (5th Cir. 1992).

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in issue and the circumstances under which they were made to see . . . whether
they are . . . protect[ed].” 2
       To begin with, speech is “protected” when the government is not
permitted to restrict it. 3 Even “imprisonment does not automatically deprive a
prisoner of some important constitutional protections, including those of the
First Amendment.” 4 Instead, a prisoner’s speech—like all speech—is presumed
to be protected, 5 irrespective of its content. 6 For “a prison regulation [or
action]” to render such speech unprotected, Turner v. Safley requires that it be


       2 Pennekamp v. Fla., 328 U.S. 331, 335 (1946); see Connick, 461 U.S. at 150 n.10;
Rankin v. McPherson, 483 U.S. 378, 384 (1987); see also Bose Corp. v. Consumers Union of
U.S., Inc., 466 U.S. 485, 499 (1984) (“[I]n cases raising First Amendment issues we have
repeatedly held that an appellate court has an obligation to ‘make an independent
examination of the whole record’ in order to make sure that ‘the judgment does not
constitute a forbidden intrusion on the field of free expression.’”) (quoting New York Times
Co. v. Sullivan, 376 U.S. 254, 285 (1964)).
       3 See U.S. CONST. amend. I (“Congress shall make no law . . . abridging the freedom
of speech . . . .”).This includes both “fully protected” speech (for example, political in
content) and even “proscribeable” speech (for example, obscene in content). Although
proscribable speech is generally unprotected if the government restricts it neutrally, it may
be protected if it restricts it nonneutrally. See R.A.V. v. City of St. Paul, Minn., 505 U.S.
377, 383-84, 387 (1992) (“We have sometimes said that these categories of expression are
not within the area of constitutionally protected speech or that the protection of the First
Amendment does not extend to them. . . . What [we] mean is that these areas of speech can,
consistently with the First Amendment, be regulated because of their constitutionally
proscribable content (obscenity, defamation, etc.)—not that they are categories of speech
entirely invisible to the Constitution, so that they may be made the vehicles for content
discrimination unrelated to their distinctively proscribable content.” (citations omitted)
(internal quotation marks omitted)).
       4 Beard v. Banks, 548 U.S. 521, 528 (2006) (plurality opinion) (citing Turner v.
Safley, 482 U.S. 78, 93 (1987)) (emphasis added).
       5 See Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 511 (1969)
(“Clearly, the prohibition of expression of one particular opinion, at least without evidence
[of an interest in doing so], is not constitutionally permissible.”).
       6  See Connick, 461 U.S. at 147 (“We in no sense suggest that speech on private
matters falls into one of the narrow and well-defined classes of expression which carries so
little social value, such as obscenity, that the State can prohibit and punish such expression
by all persons in its jurisdiction.”).

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“reasonably related to legitimate penological interests.” 7 This mandates
balancing the prisoner’s interest in his right to speech against the prison
officials’ interest in restricting that right. In so doing, we “must reach the most
appropriate possible balance of the competing interests,” even when, as here,
the “particularized balancing is difficult.” 8 Turner is entitled to judgment on
this first element of his claim because (1) there is no evidence of any interest
that would have permitted Warden Cain to restrict Turner’s speech regarding
the taxes and (2) even if there were, such an interest is insufficient to satisfy
Turner when speech is restricted nonneutrally.
                                                I.
       Although Turner has the burden of persuasion (or proof) as to each
element of his claim on summary judgment, 9 he does not necessarily have the
burden of production. 10 The burden of persuasion, which is “[a] party’s duty to
convince the fact-finder,” 11 is distinct from the burden of production, which is
“[a] party’s duty to introduce enough evidence on an issue to have the issue
decided by the fact-finder, rather than decided against the party . . . [on]
summary judgment.” 12



       7   Turner, 482 U.S. at 89.
       8   Connick, 461 U.S. at 150 & n.10.
       9 Overton v. Bazzetta, 539 U.S. 126, 132 (2003) (“The burden [of persuasion] . . . is
not on the [prison officials] to prove the validity of [the restriction on a prisoner’s speech]
but on the prisoner to disprove it.”); see Beard, 548 U.S. at 529 (plurality opinion).
       10 See Bayle v. Allstate Ins. Co., 615 F.3d 350, 359 (5th Cir. 2010). The Supreme
Court has “consistently distinguished between burden of proof, which [it has] defined as
burden of persuasion, and an alternative concept, which [it has] referred to as the burden of
production or the burden of going forward with the evidence.” OWCP v. Greenwich
Collieries, 512 U.S. 267, 274 (1994).
       11   Burden of Persuasion, BLACK’S LAW DICTIONARY (10th ed. 2014).
       12   Burden of Production, BLACK’S LAW DICTIONARY.

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       Because Turner “has the ultimate burden of persuasion,” he also has “the
burden of producing evidence to make out a ‘prima facie’ case.” 13 Stated
differently, he must produce evidence that, if uncontested, would be enough to
entitle him to judgment on each element. 14 If he does not, he will be denied
summary judgment. Here, that means Turner must produce evidence that, if
uncontested, would prove that his speech was protected. He does not, however,
have the only burden of production as to this element.
       Even though Turner has the burden of producing evidence that, if
uncontested, would prove his speech was protected, Warden Cain has the
burden of producing—or “put[ting] forward”—evidence of a legitimate
penological interest in restricting Turner’s speech. 15 This is Warden Cain’s
burden of production, not Turner’s, because there is “no express or implied
requirement in Rule 56” that Turner produce evidence negating Warden Cain’s
case. 16 Notably, “[o]ne of the principal purposes of [Rule 56] is to isolate and
dispose of factually unsupported . . . defenses, and . . . it should be interpreted




       13   Bayle, 615 F.3d at 359 (emphasis added).
       14Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986) (“[T]he inquiry under
[Rule 56] is . . . whether the evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one party must prevail as a matter of
law.”).
       15 Turner, 482 U.S. at 89 (“[A] legitimate governmental interest [must be] put
forward to justify [the restriction].”); see Mayfield v. Tex. Dep’t of Criminal Justice, 529 F.3d
599, 612 (5th Cir. 2008) (quoting Turner, 482 U.S. at 89); Victoria W. v. Larpenter, 369 F.3d
475, 484 (5th Cir. 2004); Mays v. Springborn, 575 F.3d 643, 647 (7th Cir. 2009) (“When a
prison impedes an inmate’s [speech] . . . it must present a legitimate penological reason for
doing so. But . . . the prison [does not] bear[ ] the burden of proving that its penological
reason is legitimate. Once the prison gave its explanation for denying the supplements, the
burden shift[s] to [the prisoner] to present evidence to call that explanation into question.”
(citations omitted)).
       16   Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

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in a way that allows it to accomplish this purpose.” 17 Because this “burden of
production at trial ultimately rests on [Warden Cain], ‘[Turner] must merely
demonstrate an absence of evidentiary support in the record for [Warden
Cain]’s case.’” 18 This is sufficient to discharge Turner’s burden of production as
to the first element. 19
       I am satisfied that Turner has met his burden of production because, as
noted, Turner’s speech is presumptively protected and he has identified an
absence of evidence regarding a legitimate penological interest that would
have permitted Warden Cain to restrict his speech regarding the effect of the
taxes on his prices while allowing his speech on the prices generally.
       As Turner has “ma[de] out a prima facie case that would entitle him to a
judgment as a matter of law if uncontroverted at trial, summary judgment will
be granted [in favor of Turner] unless [Warden Cain] offers some competent
evidence that . . . there is a genuine issue as to a material fact.” 20 Because he
does not also have the ultimate burden of persuasion, Warden Cain’s burden
of production is less than Turner’s. To meet it, he must “respond[ ] adequately
through [evidence] to the allegations in [Turner’s] complaint.” 21 He must
provide evidence that “show[s] more than a formalistic logical connection




       17   Id. at 323-24 (emphasis added).
       18 Shields v. Twiss, 389 F.3d 142, 149 (5th Cir. 2004) (quoting Byers v. Dallas
Morning News, Inc., 209 F.3d 419, 424 (5th Cir. 2000)); see Cuadra v. Houston Indep. Sch.
Dist., 626 F.3d 808, 812 (5th Cir. 2010).
       19   Celotex Corp., 477 U.S. at 325.
       20Grounds for Summary Judgment—Burden of Proof and Presumptions, 10A FED.
PRAC. & PROC. CIV. § 2727 (3d ed.); see Bayle, 615 F.3d at 359; Shields, 389 F.3d at 149
(quoting FED. R. CIV. P. 56(e)).
       21   Beard, 548 U.S. at 535.

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between [the limitation] and a penological objective.” 22 A “bare assertion . . . is
not enough”—Warden Cain “must adduce specific evidence to support that
assertion.” 23 As Rule 56 makes clear, if Warden Cain “fails to properly support
an assertion of fact or fails to properly address another party’s assertion of fact
as required by Rule 56(c), the court may . . . consider the fact undisputed for
purposes of the motion” and may “grant summary judgment if the motion and
supporting materials—including the facts considered undisputed—show that
the movant is entitled to it.” 24
       It is undisputed that Cain has not produced evidence of any legitimate
penological interest that would have permitted him to restrict some, but not
all, of Turner’s speech at the Rodeo, much less an interest that would pass
muster under Turner. Instead, Warden Cain only produced evidence of an
interest in transferring Turner, stating: “[Turner’s] allegations that he
informed potential customers of tax fees for each hobby craft item sold at the
prison rodeo is not the [p]enological reason that he was transferred from LSP.
[Turner] was transferred for status reduction, not for engaging in any speech.”
This might be evidence that contravenes the last three elements of Turner’s



       22 Id.; Rudolph v. Locke, 594 F.2d 1076, 1077 (5th Cir. 1979); Canady v. Thaler, 61 F.
App’x 917 (5th Cir. 2003) (unpublished) (“There is no competent summary judgment
evidence establishing that the [restriction] . . . is reasonably related to a legitimate
penological purpose. Therefore, on the face of the record [the prisoner] has alleged a
constitutional violation.” (citations omitted)); Storseth v. Spellman, 654 F.2d 1349, 1355
(9th Cir. 1981) (“We agree with those courts that require specific evidence or at least an
explanation of the purpose of the policy to justify a restriction on First Amendment rights.”
(citations omitted)).
       23   Rudolph, 594 F.2d at 1077.
       24 FED. R. CIV. P. 56(e); see Stauffer v. Gearhart, 741 F.3d 574, 581 (5th Cir. 2014) (“If
a motion for summary judgment is properly supported, the opposing party may not rely
merely on allegations or denials in its own pleadings, but must, in its response, set out
specific facts showing a genuine factual dispute for trial.”).

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                                        No. 14-30205


retaliation claim, viz., that Cain did not intend to restrict Turner’s speech by
transferring him, that the transfer did not restrict his speech, or that, even if
did, Cain did not cause his speech to be restricted. But it is not evidence that
contravenes the first element, viz., that Cain was permitted to restrict some,
but not all, of Turner’s speech at the Rodeo. In the absence of any justification
by Cain, rather than producing evidence of a legitimate penological interest,
Cain has “presented nothing but a cloud of ink.” 25 Without more, this “will not
suffice to defer [a determination]” on summary judgment. 26 This is enough for
Turner to prevail on the first element of his claim.
                                               II.
      Even if Warden Cain had met his burden of producing evidence of an
interest in restricting Turner’s speech, such an interest would not have
permitted him to prohibit Turner from speaking about the taxes included in
his prices while otherwise allowing him to speak about those prices generally.
Turner’s speech is plainly protected from such a nonneutral limitation,
regardless of Warden Cain’s interest. “[T]he First Amendment means that
government has no power to restrict expression because of its message, its
ideas, its subject matter, or its content.” 27 Likewise, “[t]he government may not
[restrict or allow speech] based on hostility—or favoritism—towards the
underlying message expressed.” 28 Such restrictions “are presumptively
invalid.” 29 Even in a nonpublic forum, a regulation or action restricting speech


      25   Golden Oil Co. v. Exxon Co., U. S. A., 543 F.2d 548, 551 (5th Cir. 1976).
      26   Id.
      27 Ashcroft v. ACLU, 535 U.S. 564, 573 (2002) (quoting Bolger v. Youngs Drug Prods.
Corp., 463 U.S. 60, 65 (1983)).
      28   R.A.V., 505 U.S. at 386.
      29   Id. at 382.

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is not reasonable if it is “an effort to suppress [the speech] merely because
officials oppose the speaker's view.” 30
       Turner itself incorporates this. It states that “the governmental objective
must be a legitimate and neutral one.” 31 It explains, too, that it is “important
to inquire whether prison regulations [or actions] restricting inmates’ First
Amendment rights operated in a neutral fashion, without regard to the content
of the expression.” 32 “When . . . the question involves the entry of people into
the prisons for face-to-face communication with inmates, it is obvious that
institutional considerations, such as security and related administrative
problems, as well as the accepted and legitimate policy objectives of the
corrections system itself, require that some limitation be placed on such
visitations.” 33 Even so, “prison officials must be accorded latitude” in imposing
such limitations only when “no discrimination in terms of content is involved.” 34
“So long as [a] restriction operates in a neutral fashion, without regard to the
content of the expression, it . . . does not abridge any First Amendment




       30 Bd. of Airport Comm’rs of City of Los Angeles v. Jews for Jesus, Inc., 482 U.S. 569,
573 (1987) (quoting Perry Ed. Assn. v. Perry Local Educators’ Assn., 460 U.S. 37, 46 (1983));
see Connick, 461 U.S. at 147 (“We in no sense suggest that speech on private matters falls
into one of the narrow and well-defined classes of expression which carries so little social
value, such as obscenity, that the State can prohibit and punish such expression by all
persons in its jurisdiction.”).
       31   Turner, 482 U.S. at 90 (emphasis added).
       32  Id. (emphasis added) (citing Pell v. Procunier, 417 U.S. 817, 828 (1974) (“So long
as this restriction operates in a neutral fashion, without regard to the content of the
expression, it falls within the ‘appropriate rules and regulations’ to which ‘prisoners
necessarily are subject,’ and does not abridge any First Amendment freedoms retained by
prison inmates.” (citation omitted))).
       33   Pell, 417 U.S. at 826.
       34   Id. (internal quotation marks omitted) (emphasis added).

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freedoms retained by prison inmates.” 35 Thus, even if Warden Cain had a
reason for nonneutrally allowing Turner’s speech about the prices of his hobby
craft while simultaneously prohibiting his speech about the taxes included in
those prices, such a reason would not have allowed Warden Cain to restrict
Turner’s speech under Turner. Turner must prevail on the first element for
this reason as well.
                                              III.
      Admittedly, the fact that Turner is entitled to prevail on this first
element of his retaliation claim does not mean that he will necessarily prevail
on the remaining elements. Warden Cain might well have produced evidence
sufficient to create genuine issues of material fact that preclude summary
judgment. It will be up to the finder of fact to sort all that out. But, in contrast,
this first element presents only an issue of law. As such, we are not bound by
what the district court did or did not do.
      Despite our obligation to engage in this inquiry—and our attendant
obligation to review “summary judgments de novo” 36—the majority skirts it
entirely, instead remanding “for the district court to make this determination.”
I respectfully disagree with this approach. Regardless of how unusual the facts
may be, the law is clear. We should hold that Turner has satisfied the first
element of his claim by proving that his speech at the Rodeo regarding the
prices of his wares including the element of the taxes was protected. I am
comforted by the belief that the district court will so hold on remand.




      35   Id. at 828 (citation and internal quotation marks omitted).
      36   Shields, 389 F.3d at 149.

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