                                                                United States Court of Appeals
                                                                         Fifth Circuit
                                                                      F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                                                                        June 6, 2006
                           FOR THE FIFTH CIRCUIT
                                                                  Charles R. Fulbruge III
                                                                          Clerk
                                No. 04-61022
                              Summary Calendar


                          CLINTON L. CRESSIONNIE,
                                             Plaintiff-Appellant,

                                    versus

 JEFFERY L. HAMPLE, in his individual and official capacities as
     Internal Audit Investigator of Mississippi Department of
 Corrections; MARVIN OVERSTREET, in his individual and official
     capacities as Internal Audit Investigator of Mississippi
   Department of Corrections; PATTY LEGG, in her individual and
 official capacities as State Hearing Officer; CHRISTOPHER EPPS,
   in his individual and official capacities as Commissioner of
              Mississippi Department of Corrections,
                                         Defendants-Appellees.


            Appeal from the United States District Court
              For the Northern District of Mississippi


                         (USDC No. 4:04-CV-186-GHD)

Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

      Proceeding    in    forma    pauperis,    Clinton    L.     Cressionnie,

Mississippi prisoner No. 22155, brought claims under 42 U.S.C.

§ 1983 against various officials in the Mississippi Department of

Corrections (“MDOC”), alleging retaliation for the exercise of

constitutional     rights.        Prior   to   service    of    the   defendant

officials, the district court dismissed Cressionnie’s claims under


      *
       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should not be published and is not precedent except under the limited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.
28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim upon

which relief may be granted.               We affirm in part and vacate and

remand in part for further proceedings.

                                           I

     As   we    must,    we   take   all       facts   alleged   in   Cressionnie’s

petition as true.       Cressionnie alleges the following: On December

15, 2003, he made a phone call to his sister using the personal

identification number of Patrick Presley, another inmate at the

Mississippi State Penitentiary in Parchman, Mississippi.                     Later

that same night, Presley committed suicide. Prison officials began

an investigation.       Two days later, on December 17, 2003, defendant

Jeffery Hample, an investigator for the Internal Audit Division of

the MDOC,      questioned     Cressionnie        regarding   Presley’s    suicide.

Cressionnie admitted using Presley’s PIN to call his sister.

Cressionnie asked Hample whether Hample would issue Cressionnie a

Rule Violation Report (“RVR”) for using Presley’s PIN, but Hample

did not respond.        Cressionnie alleges that Hample had 24 hours to

issue an RVR under MDOC operating procedures, but that Hample did

not do so.

     On December 30, 2003, Cressionnie mailed letters to Presley’s

mother, Presley’s wife, and their attorney, stating his belief that

Presley committed suicide because of a new prisoner classification

system at Parchman that resulted in some prisoners, including

Presley, being placed in isolation for extended periods of time.



                                           2
The next day, December 31, 2003, a local newspaper quoted defendant

Christopher   Epps,   Commissioner       of    the   MDOC,   as   stating   that

Parchman officials had no role in causing Presley’s suicide.                Epps

attributed Presley’s suicide to a “Dear John” letter Presley

recently received from his wife.              On January 12, 2004, another

article regarding Presley’s suicide was in the paper. This article

included references to statements by, and quotes from, an anonymous

inmate at Parchman that blamed the suicide on the new prisoner

classification system. Cressionnie alleges that the statements and

quotes from the anonymous inmate came from the letters he sent to

Presley’s family and attorney.

     Eight days after the letter quoting the anonymous inmate,

defendant Hample issued an RVR to Cressionnie for unauthorized use

of telephone privileges––presumably for the use of Presley’s PIN.

Cressionnie requested that Hample appear as a witness at the

hearing on the RVR.     Hample refused to give a statement to the

Parchman official investigating the RVR because of the sensitive

nature of his discussion with Cressionnie, but Hample stated that

he would appear at the hearing.

     Cressionnie’s hearing on the RVR occurred on February 19,

2004.   Hample did not appear; rather, defendant Marvin Overstreet,

also an investigator with the Internal Audit Division of the MDOC,

appeared in Hample’s place.    Cressionnie asserted that the RVR was

issued in retaliation for his statements appearing in the local

newspaper; Overstreet stated that he should charge Cressionnie with

                                     3
obstruction       of     the    investigation         into           Presley’s      suicide.

Cressionnie alleges that defendant Patty Legg, a hearing officer at

Parchman,    found     Cressionnie      guilty        of       the    RVR   prior    to   the

completion of the hearing. Further, Cressionnie alleges that about

a month after the hearing, he was told by an unnamed officer at

Parchman that Legg had been ordered to find Cressionni guilty of

the RVR.

       With the guilty finding on the RVR, Cressionnie had 26 points

in the prisoner classification system, which kept him in isolation.

Cressionnie alleges that were it not for the RVR, he would only

have 21 points, which would have allowed him to return to the

general population.

       Cressionnie brought claims under 42 U.S.C. § 1983 against

Hample, Legg, and Overstreet, alleging that they participated in

the issuance of the RVR and the guilty finding in retaliation for

Cressionnie sending letters to Presley’s family and their attorney

that included criticism of the MDOC and Parchman.                             Cressionnie

brought claims under 42 U.S.C. § 1983 against Epps, alleging that

Epps ordered that the RVR be issued and that Cressionnie be found

guilty in retaliation for the same letters.                           Cressionnie sought

expungement of the RVR and the guilty finding, along with a return

to the general prison population at Parchman.                          He also sought an

unspecified amount of nominal, compensatory, and punitive damages

from   all   of    the    defendants.           The    district         court    dismissed

Cressionnie’s      claims      under   28   U.S.C.         §    1915(e)(2)(b)(ii)         for

                                            4
failure        to   state   a   claim    upon    which   relief    can   be   granted.

Cressionnie appealed.

                                            II

       We first determine whether Cressionnie’s appeal was timely.

Federal Rule of Appellate Procedure 4(a)(1)(A) requires that the

notice of appeal in a civil action be filed within 30 days of entry

of the judgment or order from which appeal is taken.                      If a party

files a timely motion under Federal Rule of Civil Procedure 59, the

time to file an appeal runs from the entry of the order disposing

of the Rule 59 motion.1           A Rule 59 motion is timely if it is filed

no later than 10 days after entry of the judgment,2 and the

district court may not extend time for filing a Rule 59 motion.3

       Here, Cressionnie filed a “motion for reconsideration” more

than 10 days after the entry of judgment.                We have previously noted

that       “[t]he    Federal     Rules    do     not   recognize    a    ‘motion   for

reconsideration’ in haec verba.”4                If a motion so named challenges

the prior judgment on the merits, we will treat it as a motion ‘to

alter or amend’ the judgment under Rule 59(e) or a motion for

‘relief from judgment’ under Rule 60(b).5                   Cressionnie’s motion


       1
         Fed. R. App. P. 4(a)(4)(A).
       2
         Fed. R. Civ. P. 59(e).
       3
         Fed. R. Civ. P. 6(b).

       4
         Lavespere v. Niagara Mach. & Tool Works, Inc., 910 F.2d 167, 173 (5th Cir.
1990).
       5
         Id.

                                            5
came after the 10-day window for a Rule 59 motion expired, thus it

must be treated as a motion for relief from judgment under Rule 60.

A Rule 60 motion, however, does not suspend the time for filing a

notice of appeal. Thus, Cressionnie’s notice of appeal, filed more

than 30 days after the entry of judgment, was facially untimely.

      Despite     this,    the    Supreme     Court     imposed    a    “unique

circumstances” exception to the rules. Thus, we have discretion to

ignore a facially untimely notice of appeal when a litigant relies

upon a district court’s representation that a Rule 59 motion is

timely, even though a district court has no authority to extend

time to file such a motion.6          Here, the district court expressly

allowed    Cressionnie      additional      time   to    file     his   motion,

representing that it is typical to give prisoner pro se litigants

additional time, and Cressionnie relied upon the district court’s

statement.      As in Fairley, this triggers the unique circumstances

exception, and we have jurisdiction over Cressionnie’s appeal.7

                                      III

      We review de novo the district court’s dismissal for failure

to state a claim under 28 U.S.C. § 1915(e)(2)(B)(ii).             Dismissal is

proper if, taking all of plaintiff’s allegations as true, it




      6
       Fairley v. Jones, 824 F.2d 440, 442 (5th Cir. 1987); see Wolfsohn v.
Hankin, 376 U.S. 203 (1964) (mem.), rev’g 321 F.2d 393 (D.C. Cir. 1963); Thompson
v. INS, 375 U.S. 384, 386-87 (1964).
      7
       Fairley, 824 F.2d at 442-43.

                                       6
appears that no relief could be granted on the plaintiff’s alleged

facts.8

      For Cressionnie’s retaliation claims to go forward, he must

allege: (1) a specific constitutional right; (2) the defendant’s

intent to retaliate against the prisoner for his exercise of that

right; (3) a retaliatory adverse act; and (4) causation.9                         “An

action       motivated     by    retaliation     for   the       exercise    of    a

constitutionally protected right is actionable, even if the act,

when taken for a different reason, might have been legitimate.”10

“The inmate must produce direct evidence of motivation or, the more

probable       scenario,    allege   a   chronology    of    events   from   which

retaliation may plausibly be inferred.”11

      With three of the defendants, the district court correctly

dismissed Cressionnie’s claims. With defendant Epps, Cressionnie’s

allegation of his personal belief that Epps retaliated against him

is insufficient.12          With defendant Legg, Cressionnie alleged no

evidence from which retaliation could be inferred.13 With defendant



      8
       Harris v. Hegmann, 198 F.3d 153, 156 (5th Cir. 1999).
      9
       McDonald v. Steward, 132 F.3d 225, 231 (5th Cir. 1998).

      10
           Woods v. Smith, 60 F.3d 1161, 1165 (5th Cir. 1995).
      11
           Id. at 1166 (internal quotation marks omitted).
      12
       Johnson v. Rodriguez, 110 F.3d 299, 310 (5th Cir. 1997) (“The relevant
showing in [retaliation cases] must be more than the prisoner’s ‘personal belief
that he is the victim of retaliation.’” (quoting Woods v. Edwards, 51 F.3d 577,
580 (5th Cir. 1995)).
      13
           Woods, 60 F.3d at 1166.

                                          7
Overstreet, Cressionnie did not allege that Overstreet took an

adverse       act     against   him.        Accordingly,   the    district    court’s

dismissal        of    Cressionnie’s         claims   against    Epps,     Legg,   and

Overstreet is affirmed.

      With       defendant        Hample,     Cressionnie’s      complaint    alleged

sufficient facts to establish a retaliation claim. Cressionnie has

a constitutional right to correspond with the general public and to

contact        the     press.14         Cressionnie     alleges     that     Hample’s

action––issuing the RVR––was in retaliation for Cressionnie sending

letters to Presley’s lawyer and family that were critical of the

prison and prison officials.                Further, in Hart v. Hairston, we held

that the loss of commissary privileges and imposition of cell

restrictions          constitutes      an   adverse   act.15     Here,   Cressionnie

alleges that without the RVR for unauthorized phone use, he would

have been allowed to return to the general prison population.

      Further, Cressionnie alleged a chronology of events from which

a retaliatory motivation on the part of Hample and causation could

plausibly be inferred.              Here, Cressionnie admitted to the phone

violation, yet no RVR issued for over a month and only after the

local newspaper published an article quoting an “anonymous inmate”

      14
       Freeman v. Texas Dep’t of Criminal Justice, 369 F.3d 854, 864 (5th Cir.
2004) (holding that prisoners “retain, in a general sense, a right to criticize
prison officials”); Woods v. Smith, 60 F.3d 1161, 1164 (5th Cir. 1996); Jackson
v. Cain, 864 F.2d 1235, 1248 (5th Cir. 1989) (“A prison inmate is entitled to his
First Amendment right to freedom of expression so long as it is not inconsistent
with his status as a prisoner and does not adversely affect a legitimate state
interest.”).
      15
           343 F.3d 762, 764 (5th Cir. 2003).

                                              8
at the prison.       These allegations are sufficient to state a valid

claim for retaliation under § 1983.      That Cressionnie admitted to

the rule violation is of no moment.      Our focus is on whether there

was “retaliation for the exercise of a constitutional right,

separate and apart from the apparent validity of the underlying

disciplinary report.”16 Accordingly, the district court’s dismissal

for failure to state a claim upon which relief can be granted is

vacated and the case is remanded for further proceedings.

     AFFIRMED IN PART; VACATED AND REMANDED IN PART.




     16
          Woods, 60 F.3d at 1166.

                                     9
