                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 13-7828


PATRICK L. BOOKER,

                Plaintiff - Appellant,

          v.

SOUTH CAROLINA DEPARTMENT OF CORRECTIONS; SYLVIA JONES; ANN
SHEPPARD; THIERRY NETTLES,

                Defendants - Appellees.



Appeal from the United States District Court for the District of
South Carolina, at Anderson.    Mary G. Lewis, District Judge.
(8:12-cv-01957-MGL)


Submitted:   March 31, 2014                 Decided:   August 28, 2014


Before WILKINSON and GREGORY, Circuit Judges, and DAVIS, Senior
Circuit Judge.


Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.


Patrick L. Booker, Appellant Pro Se.   Mary Elizabeth Sharp,
GRIFFITH, SADLER & SHARP, PA, Beaufort, South Carolina, for
Appellees.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

             Patrick L. Booker appeals the district court’s order

adopting the recommendation of the magistrate judge and granting

summary   judgment        on    his     claim       that   prison      mailroom      employee

Sylvia Jones violated his First Amendment rights by filing a

false    disciplinary          charge     against      him   in     retaliation           for    a

grievance Booker submitted regarding the inspection of his mail.

Booker also contests the district court’s determination that his

Fed. R. Civ. P. 59(e) motion was moot.                            We affirm in part,

vacate in part, and remand for further proceedings.

             We    review       the     district       court’s         grant    of    summary

judgment de novo.           Robinson v. Clipse, 602 F.3d 605, 607 (4th

Cir. 2010).       Summary judgment shall be granted when “there is no

genuine   dispute     as       to   any    material        fact     and   the    movant         is

entitled to judgment as a matter of law.”                               Fed. R. Civ. P.

56(a).    “At the summary judgment stage, facts must be viewed in

the light most favorable to the nonmoving party only if there is

a genuine dispute as to those facts.”                      Scott v. Harris, 550 U.S.

372, 380 (2007) (internal quotation marks omitted).                             A district

court should grant summary judgment unless a reasonable jury

could return a verdict for the nonmoving party on the evidence

presented.        Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249

(1986).      “Conclusory or speculative allegations do not suffice,

nor   does    a    mere    scintilla       of       evidence      in    support      of    [the

                                                2
nonmoving party’s] case.”               Thompson v. Potomac Elec. Power Co.,

312   F.3d   645,     649    (4th      Cir.    2002)       (internal      quotation       marks

omitted).

             For     his    claim       of    retaliation          to     survive     summary

judgment,     Booker       was    required     to        produce   sufficient        evidence

“that (1) [he] engaged in protected First Amendment activity,

(2) [Jones] took some action that adversely affected [his] First

Amendment     rights,       and       (3)    there       was   a   causal     relationship

between      [his]     protected            activity        and    [Jones’]         conduct.”

Constantine v. Rectors & Visitors of George Mason Univ., 411

F.3d 474, 499 (4th Cir. 2005).                       With respect to the second

element,     Booker    was       required      to    “show     that      [Jones’]     conduct

resulted in something more than a de minimis inconvenience to

[his] exercise of First Amendment rights.”                         Id. at 500 (internal

quotation marks omitted).               Whether Booker’s protected speech was

in    fact    curtailed          by     Jones’       conduct,           however,     is    not

dispositive.         Rather, the district court was required to also

evaluate whether Jones’ actions “would likely deter a person of

ordinary firmness from the exercise of First Amendment rights.”

Id. (internal quotation marks omitted).                        This objective inquiry

examines the specific facts of each case, taking into account

the actors involved and their relationship.                             See Balt. Sun Co.

v. Ehrlich, 437 F.3d 410, 416 (4th Cir. 2006).                                Importantly,

because      “conduct       that       tends        to     chill        the   exercise       of

                                               3
constitutional        rights    might    not    itself     deprive     such    rights,

. . . a plaintiff need not actually be deprived of [his] First

Amendment    rights       in     order     to     establish      First       Amendment

retaliation.”     Constantine, 411 F.3d at 500.

            Applying this precedent, we conclude that disputes of

material fact undermine the district court’s finding that Booker

suffered    no   cognizable       injury       from   Jones’     actions.       After

receiving Booker’s grievance regarding the handling of his mail,

Jones charged him with the disciplinary offense of “Threatening

to Inflict Harm on/Assaulting an Employee and/or Members of the

Public.”     Yet,      the     record    contains     no   uncontested        evidence

plausibly suggesting that the content of Booker’s grievance or

his other conduct warranted that charge, as it is defined by the

South Carolina Department of Corrections.                  In fact, viewed in a

light most favorable to Booker, the evidence supports a contrary

finding.    The evidence supported Booker’s allegation as to the

falsity of the charge, in that (1) Booker was found not guilty

because there was no evidence he physically threatened Jones,

(2) Booker specifically refuted Jones’ averment that he yelled

threats at her, and (3) Jones’ Incident Report levying the 809

charge   made    no    mention    of     verbal    threats     or    other    arguably

intimidating conduct. Under such circumstances, we conclude that

Booker produced sufficient evidence that Jones’ conduct would

likely   deter    prisoners       of    ordinary      firmness      from   exercising

                                           4
their First Amendment rights.              See, e.g., Santiago v. Blair, 707

F.3d 984, 993 (8th Cir. 2013); see also Gayle v. Gonyea, 313

F.3d 677, 682-84 (2d Cir. 2002).                 However, we offer no opinion

as to whether Booker has engaged in protected speech or can show

the requisite causal connection between that speech and Jones’

decision to charge him with the disciplinary infraction, leaving

those questions for consideration in the first instance to the

district court on remand.

             Further, we conclude that the district court abused

its discretion by denying Booker’s Rule 59(e) motion as moot.

See Robinson v. Wix Filtration Corp., 599 F.3d 403, 407 (4th

Cir.    2010)     (stating     standard     of   review).      Contrary    to    the

district court’s apparent determination, it retained authority

to   consider      Booker’s     post-judgment        motion   despite    remanding

under 28 U.S.C. § 1367(c)(3) (2012).                 See Hudson United Bank v.

LiTenda Mortg. Corp., 142 F.3d 151, 157-59 (3d Cir. 1998); see

also Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 640-41

(2009).

             Accordingly, we vacate the grant of summary judgment

on Booker’s claim that Jones retaliated against him for filing a

grievance complaining of the opening of his mail and affirm the

grant   of   summary      judgment    on    Booker’s      remaining    federal   law

claims.      We    also   vacate     the    denial    of    Booker’s    Rule   59(e)

motion.      Because      we   reinstate       one   of    Booker’s    federal   law

                                           5
claims, we vacate the district court’s order remanding Booker’s

state    law     claims     and   direct      reconsideration            of     whether

exercising      jurisdiction      over     those     claims      is    appropriate.

Vathekan v. Prince George’s Cnty., 154 F.3d 173, 181 (4th Cir.

1998).     We remand for further proceedings consistent with this

opinion.       We dispense with oral argument because the facts and

legal    contentions      are   adequately     presented      in      the     materials

before   this    court    and   argument     would   not   aid     the      decisional

process.

                                                              AFFIRMED IN PART,
                                                               VACATED IN PART,
                                                                   AND REMANDED




                                         6
