                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                 FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                          DECEMBER 21, 2009
                             No. 09-11423                 THOMAS K. KAHN
                         Non-Argument Calendar                CLERK
                       ________________________

                   D. C. Docket No. 06-14361-CV-DLG

GLENN C. SMITH,



                                                          Petitioner-Appellant,

                                  versus

SECRETARY, FLORIDA DEPARTMENT OF
CORRECTIONS, Walter A. McNeil,
STEPHEN W. KEGERREIS,
individual capacity, et al.


                                                       Respondents-Appellees.


                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      _________________________

                            (December 21, 2009)

Before DUBINA, Chief Judge, HULL and ANDERSON, Circuit Judges.
PER CURIAM:

       Glenn C. Smith, proceeding pro se, appeals the dismissal of his 42 U.S.C.

§ 1983 complaint for failure to state a claim for relief and the denial of his motion

for relief from the judgment under Rule 60(b), Federal Rules of Civil Procedure.

As to the complaint, Smith argues that the district court erred by (1) dismissing his

retaliation claims, (2) dismissing his due process claims, and (3) finding that a

prison rule requiring inmates to comply with all orders issued by the guards is

constitutional. He also argues that the district court abused its discretion by

denying his motion for relief from the judgment because his complaint stated a

claim for relief.

                                           I.

       First, Smith argues that the district court erred by dismissing his retaliation

claims, in which he claimed that prison guards filed a retaliatory disciplinary report

against him for exercising his First Amendment right to protest cold conditions in

his cell by covering his air vent.

       “A district court’s decision to dismiss for failure to state a claim under

28 U.S.C. § 1915A is reviewed de novo, taking the allegations in the complaint as

true.” Boxer X v. Harris, 437 F.3d 1107, 1110 (11th Cir. 2006). “Pro se pleadings

are held to a less stringent standard than pleadings drafted by attorneys and will,



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therefore, be liberally construed.” Tannenbaum v. United States, 148 F.3d 1262,

1263 (11th Cir. 1998).

       Section 1915A of the Prison Litigation Reform Act provides that “[t]he court

shall review, before docketing, if feasible or, in any event, as soon as practicable

after docketing, a complaint in a civil action in which a prisoner seeks redress from

a governmental entity or officer or employee of a governmental entity.” 28 U.S.C.

§ 1915A(a). Upon review, the court is to identify cognizable claims, or dismiss the

complaint or portions thereof that are “frivolous, malicious, . . . fail [] to state a

claim upon which relief may be granted, or seek [] monetary relief from a

defendant who is immune from such relief.” Id. § 1915A(b). “A complaint is

subject to dismissal for failure to state a claim if the allegations, taken as true,

show the plaintiff is not entitled to relief.” Jones v. Bock, 549 U.S. 199, 215,

127 S. Ct. 910, 920, 166 L. Ed. 2d 798 (2007). A prisoner’s “complaint must

contain enough facts to state a claim of retaliation by prison officials that is

plausible on its face.” Douglas v. Yates, 535 F.3d 1316, 1321 (11th Cir. 2008)

(internal quotation marks omitted).

       “The First Amendment forbids prison officials from retaliating against

prisoners for exercising the right of free speech.” Farrow v. West, 320 F.3d 1235,

1248 (11th Cir. 2003). It is well established that a prisoner exercises his First



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Amendment right when he complains about his conditions of confinement. Id. To

state a retaliation claim, a plaintiff must allege that (1) his speech or act was

constitutionally protected, (2) the defendant’s retaliatory conduct adversely

affected the protected speech, and (3) there is a causal connection between the

retaliatory actions and the adverse effect on speech. Smith v. Mosley, 532 F.3d

1270, 1276 (11th Cir. 2008). To establish a claim for retaliation, the inmate must

show a causal connection between his protected conduct and the prison official’s

action. Farrow, 320 F.3d at 1248-49.

      Accepting the allegations of the complaint as true, prison officers issued

Smith a disciplinary report because he refused to obey an order to uncover his air

vent, which he had covered to block cold air from coming out of it. Thus, the

allegations of the complaint establish that prison officials issued the report because

he failed to comply with an order, not because he engaged in First Amendment

expression. Accordingly, we conclude that the district court correctly found that

there was no causal connection between any protected expression and the

disciplinary report.

                                           II.

      Next, Smith argues that the district court erred by dismissing his due process

claims, in which he claimed that prison officials wrongfully subjected him to



                                            4
disciplinary confinement in connection with the disciplinary report discussed

above. Smith contends that he had a liberty interest in being free from disciplinary

confinement.

      The Due Process Clause protects against deprivations of “life, liberty, or

property without due process of law.” U.S. Const. Amend. XIV. “A § 1983 action

alleging a procedural due process clause violation requires proof of three elements:

deprivation of a constitutionally-protected liberty or property interest; state action;

and constitutionally-inadequate process.” Cryder v. Oxendine, 24 F.3d 175, 177

(11th Cir. 1994). This Court has recognized two situations in which a prisoner,

who already has been deprived of liberty in the traditional sense, can further be

deprived of his liberty, such that due process is required. Kirby v. Siegelman, 195

F.3d 1285, 1290-91 (11th Cir. 1999). First, a prisoner is entitled to due process

when a change in his conditions of confinement “is so severe that it essentially

exceeds the sentence imposed by the court.” Id. at 1291. Second, due process is

required “when the state has consistently bestowed a certain benefit to prisoners, . .

. and the deprivation of that benefit imposes atypical and significant hardship on

the inmate in relation to the ordinary incidents of prison life.” Id. (internal

quotation marks omitted). The Supreme Court has held that placement in

disciplinary confinement for 30 days did not give rise to a protected liberty interest



                                            5
where the punishment, “with insignificant exceptions, mirrored those conditions

imposed upon inmates in administrative segregation and protective custody.”

Sandin v. Connor, 515 U.S. 472, 475-76, 486, 115 S. Ct. 2293, 2296, 2301, 132 L.

Ed. 2d 418 (1995).

      Here, although Smith asserted a number of ways in which disciplinary

confinement differed from being in the general prison population, he also conceded

that the conditions in disciplinary confinement essentially were the same as the

conditions in administrative confinement. Accordingly, we conclude that Smith

did not have a liberty interest in being free from disciplinary confinement, and the

district court correctly found that he failed to state a due process claim.

                                          III.

      Smith also argues that the district court erred by finding that the rule

requiring prison inmates to obey all orders issued by the guards is constitutional.

He asserts that the rule wrongly requires inmates to comply with illegal orders.

      “Unlike the strict standards of scrutiny applicable to the constitutional rights

of persons in free society, the Supreme Court has adopted a deferential standard for

determining whether a prison regulation violates an inmate’s constitutional rights.”

Hakim v. Hicks, 223 F.3d 1244, 1247 (11th Cir. 2000). A prison regulation, even

one that infringes on the inmate’s constitutional rights, “is an actionable



                                            6
constitutional violation only if the regulation is unreasonable.” Id. In examining

the reasonableness of a regulation, we consider the following factors:

      (1) whether there is a “valid, rational connection” between the
      regulation and a legitimate governmental interest put forward to
      justify it; (2) whether there are alternative means of exercising the
      asserted constitutional right that remain open to the inmates;
      (3) whether and the extent to which accommodation of the asserted
      right will have an impact on prison staff, inmates, and the allocation
      of prison resources generally; and (4) whether the regulation
      represents an “exaggerated response” to prison concerns.

Hakim, 223 F.3d at 1247-48 (quoting “Pope v. Hightower, 101 F.3d 1382, 1384

(11th Cir 1996)).

      Here, (1) there is a valid, rational connection between the regulation and the

necessity of maintaining safety and security in the prisons; (2) alternative means

existed for Smith to express his First Amendment rights; (3) revising the rule to

require prisoners to comply only with legal orders would create vagueness in the

regulation and allow prisoners to challenge every order they believe to be illegal;

and (4) the rule is not an exaggerated response to safety concerns. Accordingly,

we conclude that the district court correctly dismissed Smith’s constitutional

challenge to the regulation.

                                         IV.

      Finally, Smith argues that the district court abused its discretion by denying

his motion for relief from the judgment where his complaint stated valid retaliation

                                          7
and due process claims.

      Regardless of how the parties label the motion, the district court will treat a

post-judgment motion as having been filed under Federal Rule of Civil Procedure

59 or 60, depending on the type of relief sought. Burnam v. Amoco Container Co.,

738 F.2d 1230, 1231 (11th Cir. 1984). We review the denial of either motion for

an abuse of discretion. Burke v. Smith, 252 F.3d 1260, 1263 (11th Cir. 2001)

(addressing Rule 60(b) motions), Drago v. Jenne, 453 F.3d 1301, 1305 (11th Cir.

2006) (addressing Rule 59(e) motions).

      A Rule 59(e) motion under the Federal Rules of Civil Procedure seeks to

alter or amend a judgment and must be filed no later than ten business days after

the entry of judgment. Fed.R.Civ.P. 59(e); see Mays v. U.S. Postal Serv., 122 F.3d

43, 46 (11th Cir. 1997). In order for a Rule 59(e) motion to be granted, a party

must identify “newly-discovered evidence or manifest errors of law or fact.”

Arthur v. King, 500 F.3d 1335, 1343 (11th Cir. 2007) (internal quotation marks

omitted). A Rule 59(e) motion cannot be used to relitigate matters that already

have been considered. Id. Moreover, such a motion cannot be used to raise

arguments or present evidence that could have been raised before the judgment was

entered. Id.

      A Rule 60(b) motion under the Federal Rules of Civil Procedure may



                                          8
provide relief from a judgment due to: (1) mistake, inadvertence, surprise, or

excusable neglect; (2) newly discovered evidence which could not have been

discovered earlier with due diligence; (3) fraud, misrepresentation, or other

misconduct of an adverse party; (4) a void judgment; (5) a judgment that has been

satisfied, released, discharged, reversed, or vacated; or (6) any other reason

justifying relief from the operation of the judgment. Fed.R.Civ.P. 60(b). Relief

under Rule 60(b)(6) “is an extraordinary remedy, but it is within the district court’s

discretion to grant it in order to do justice.” Ritter v. Smith, 811 F.2d 1398, 1400

(11th Cir. 1987).

      In his motion for relief from the judgment, Smith did not identify any

newly-discovered evidence or manifest errors of law or fact. Moreover, he did not

argue that he was entitled to relief under any of the specific justifications found in

Rule 60(b). Accordingly, regardless of whether it fell under Rule 59(e) or

Rule 60(b), we conclude that the district court did not abuse its discretion by

denying the motion for relief from the judgment.

      For the above-stated reasons, we affirm the judgment of dismissal.

AFFIRMED.




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