   Case: 08-30315       Document: 00511039184          Page: 1    Date Filed: 03/02/2010




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

                                                 FILED
                                                                            March 2, 2010
                                       No. 08-30315
                                                                       Charles R. Fulbruge III
                                                                               Clerk



GERALD JOSEPH,

                                                   Plaintiff-Appellant,

versus

DARRELL DYKES, Captain at Rayburn Correctional Center;
JERRY YOUNG, Classification Officer at Rayburn Correctional Center;
VERNON SMITH, Lieutenant at Rayburn Correctional Center,

                                                   Defendants-Appellees.




                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                               No. 2:06-CV-10810




Before SMITH, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*


       Gerald Joseph, a Louisiana prisoner, appeals a summary judgment in fa-
vor of prison officials on his 42 U.S.C. § 1983 claims. He argues that officers re-

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
   Case: 08-30315    Document: 00511039184      Page: 2   Date Filed: 03/02/2010

                                  No. 08-30315

taliated against him for exercising his First Amendment rights. We vacate and
remand.


                                        I.
      While working as an inmate counsel in the Rayburn Correctional Center
(“RCC”), Joseph typed a letter to an attorney at the American Civil Liberties Un-
ion. The letter addressed the legal affairs of another inmate and the general
practices of prison security. Joseph was called away from his office, and when
he returned, the letter was no longer in the typewriter. The next day, he re-
ceived a disciplinary report from Captain Darrell Dykes, alleging that the letter
violated RCC’s Rule 30K against making malicious statements about RCC or its
staff. A disciplinary board, made up of officers Jerry Young and Vernon Smith,
found Joseph guilty of the offense and punished him with the loss of his job as
inmate counsel and six months’ incentive pay.
      Joseph filed a pro se, in forma pauperis § 1983 complaint against Dykes,
Young, and Smith. Arguing that the officers had retaliated against him for exer-
cising his rights under the First and Fourteenth Amendments, he sought mone-
tary damages and reinstatement as inmate counsel.
      After a Spears hearing and unsuccessful settlement discussions, the offi-
cers moved for summary judgment. Finding that Joseph raised no cognizable
constitutional claims, the magistrate judge (“MJ”) recommended that the district
court grant summary judgment and dismiss the complaint with prejudice. Over
Joseph’s objections, the court adopted the MJ’s findings and conclusions. Joseph
appeals the denial of his retaliation claim based on the exercise of his rights un-
der the First Amendment.


                                        II.
      We review a summary judgment de novo. Mayfield v. Tex. Dep’t of Crimin-

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                                  No. 08-30315

al Justice, 529 F.3d 599, 603 (5th Cir. 2008). Summary judgment is appropriate
“if the pleadings, the discovery and disclosure materials on file, and any affida-
vits show that there is no genuine issue as to any material fact and that the
movant is entitled to judgment as a matter of law.” F ED. R. C IV. P. 56(c)(2). “We
are not bound by the reasons articulated by the district court . . . and may affirm
the judgment on other grounds.” Chriceol v. Phillips, 169 F.3d 313, 315 (5th Cir.
1999).


                                        III.
      To establish retaliation, a prisoner must show “(1) a specific constitutional
right, (2) the defendant’s intent to retaliate against the prisoner for his or her
exercise of that right, (3) a retaliatory adverse act, and (4) causation.” McDonald
v. Steward, 132 F.3d 225, 231 (5th Cir. 1998). Finding that Joseph’s complaint
did not implicate any constitutional rights, the district court granted summary
judgment on the first prong. Joseph contends, however, that the court miscon-
strued the nature of his claim under the First Amendment. He argues that the
court thought he was making an access-to-court claim, but he was actually mak-
ing a free-speech retaliation claim. Construing his pro se complaint liberally,
Johnson v. Atkins, 999 F.2d 99, 100 (5th Cir. 1993) (per curiam), we conclude
that Joseph asserts both types of claim.
      Prisoners have a constitutionally protected right of access to the courts, see
Bounds v. Smith, 430 U.S. 817, 821 (1977), that is one aspect of the First
Amendment right to petition the government for a redress of grievances, see Cal.
Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 510 (1972). Joseph now
concedes that writing the letter did not implicate his right of access to the courts
under the First Amendment.
      In adopting the MJ’s opinion, however, the district court applied the wrong
standard to the First Amendment free-speech claim. Relying on Johnson v. Rod-

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                                       No. 08-30315

riguez, 110 F.3d 299 (5th Cir. 1997), the court found that Joseph had no cogniza-
ble First Amendment claim, because “‘[t]he relevant constitutional protection
. . . accrues to the benefit of the prisoner in whose name the lawsuit is filed, not
those who assist in the preparation of that lawsuit.’” Joseph v. Dykes, No. 06-
10810, 2008 WL 553193, at *2 (E.D. La. Feb. 27, 2008) (quoting Johnson, 110
F.3d at 311). The quoted section of Johnson, however, dealt only with the consti-
tutional right of access to the courts. By conflating Joseph’s free-speech claim
with his access-to-court claim, the district court applied the wrong standard to
the former.
       A prisoner’s free-speech claim must instead be analyzed under Turner v.
Safley, 482 U.S. 78, 89 (1987),1 in which the Court held that prisoner speech may
be curtailed if the regulation is “reasonably related to legitimate penological in-
terests.” That standard determines the scope of Joseph’s free-speech rights and
must be applied on the first prong of his retaliation claim. Because the district
court applied the improper access-to-court standard to the underlying free-
speech claim, the summary judgment on Joseph’s retaliation claim was in error.2
       The summary judgment on the retaliation claim is VACATED, and this
matter is REMANDED for further action in accord with this opinion. We ex-
press no view on what decisions the district court should make on remand or on
the ultimate merits of the remaining issues.




       1
        See Brewer v. Wilkinson, 3 F.3d 816, 823-27 (5th Cir. 1993); see also Morgan v. Quar-
terman, 570 F.3d 663, 666 (5th Cir. 2009).
       2
         The record is insufficient for this court to resolve Joseph’s free-speech claims under
Turner, so the district court must address that issue on remand. The officers also claimed
qualified immunity in the district court, but neither party mentions that issue on appeal.

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