Full Opinion (html_with_citations)

                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 22-2164
                        ___________________________

                               Anthony D. Lamar

                                     Plaintiff - Appellant

                                        v.

 Dexter Payne, Director, Arkansas Department of Correction; Randy Straughn,
Major, Varner Unit, ADC; James Gibson, Superintendent,/Head Warden, Varner
Unit, ADC; Yolanda Linsy 1, Captain, Varner Unit, ADC; James Shipman, Deputy
Warden over Security, Varner Supermax, ADC; Flora Washington, Classification
                          Officer, Varner Unit, ADC

                                    Defendants - Appellees

  Tiffany Moore, Nurse; Does, Mental Health Counselor, ADC Commissary and
                          Policy Management Team

                                        Defendants
                                 ____________

                     Appeal from United States District Court
                 for the Eastern District of Arkansas - Pine Bluff
                                  ____________

                            Submitted: April 9, 2024
                             Filed: August 5, 2024
                                 ____________



      1
       The district court caption incorrectly identifies Yolanda Linsy as Yolanda
Linsey. This caption has been amended to reflect the proper spelling.
Before LOKEN, SHEPHERD, and KOBES, Circuit Judges.
                          ____________

SHEPHERD, Circuit Judge.

       Anthony Lamar, an inmate in the Arkansas Department of Corrections
(ADC), filed a pro se
42 U.S.C. § 1983
 action alleging, as relevant to this appeal,
that several ADC employees (Defendants) retaliated against him for exercising his
First Amendment rights by filing a grievance, circulating a memorandum
encouraging other inmates to file grievances challenging a new administrative
directive, and threatening a lawsuit. The district court granted summary judgment
in Defendants’ favor, concluding that they had valid and non-retaliatory reasons for
taking disciplinary actions against Lamar because he violated prison rules. The
district court also denied Lamar’s request for an extension of time to file a summary
judgment motion after he missed the deadline for dispositive motions. Lamar
appeals, and, having jurisdiction pursuant to
28 U.S.C. § 1291
, we reverse the district
court’s grant of summary judgment but affirm its denial of Lamar’s request for an
extension of time.

                                          I.


       Lamar initially filed this pro se action as a class action, asserting claims on
behalf of himself and other similarly situated ADC inmates that a new ADC
administrative directive violated their First Amendment rights. Lamar also brought
additional claims on his behalf only, alleging that various ADC employees retaliated
against him for exercising his First Amendment rights. Lamar’s claims stem from
the implementation of ADC Administrative Directive 17-23, which was enacted to
combat the increasing use of illegal drugs within the ADC, and, as relevant here,
imposed a three-page limit for all non-privileged correspondence between ADC
inmates and non-incarcerated individuals. This Administrative Directive went into
effect on August 21, 2017, but the ADC notified its inmates via written notice of the
changes to the inmate-correspondence policy prior to the effective date. At the time
                                         -2-
of the enactment of Administrative Directive 17-23, Lamar was an inmate at the
Varner Unit, an ADC facility in Grady, Arkansas.


       Lamar learned of the new Administrative Directive through the notices the
ADC placed throughout the facility, and, once it went into effect, he filed a grievance
challenging the policy. Separate from his challenge to the Administrative Directive,
Lamar filed an unrelated grievance on August 6, 2017, which he asked Yolanda
Linsy, then-Lieutenant at the Varner Unit, to sign. Lamar alleges that Linsy refused
to sign his grievance, leading him to file a grievance against her for her refusal to
sign. Lamar also circulated a memorandum, dated August 25, 2017, which
encouraged all inmates to file grievances asserting that Administrative Directive
17-23 violated the inmates’ First Amendment Rights. The memorandum, which
used ADC letterhead that had been altered to read “Inter-Prison Communication”
rather than Inter-Office Communication, stated, in type-written form:

      I need your help in getting this new Mail Policy, AD 17-23, done away
      with. I need for EVERYONE to file a grievance, saying AD 17-23 is
      unconstitutional. [A] violation of your First Amendment Rights under
      the Free Speech clause of the U.S. Constitution. . . . I need you all to
      file these grievances by no later than September 5, 2017 and send these
      grievances up through every level. . . . If you don’t know how to write
      a grievance, then come to me and I will write it for you to get signed.
      Free-of-Charge. If you have any questions on how to get your
      grievances sent to Central Office after Warden Gibson sends you
      his . . . response, then come to me and I will take care of it. I need
      EVERYONE to go to the Law Library, get some “AFFIDAVIT” forms,
      explain on it how AD 17-23 is violating your rights to get mail from
      those on the outside world, how this Policy violates your rights . . . . I
      Will file this Lawsuit on my own and win it for us using these
      grievances and affidavits that you all send to me after you send the
      grievances through all levels and after you all get those affidavits
      notarized and sent to me. . . . I need you all’s help men. The more
      fully exhausted grievances and notarized affidavits with your name and
      ADC numbers on them that I get, the better my chances become at
      winning this Lawsuit. Getting it certified as a Class-Action Lawsuit,
      and getting this highly unconstitutional mail Policy abolished
                                         -3-
      permanently. . . . We’re all we got. So let’s work together to stop this
      Policy.

At the bottom of the page, Lamar wrote in his own handwriting, “‘Peacefully United
we stand, Divided we shall fall.’ If we don’t stand for something, then we will fall
for anything. Let’s stand Peacefully.” The memorandum also included Lamar’s full
name and prison identification number. Lamar made copies of the memorandum
using the legal mail process and posted the copies in the facility’s barracks.

       On August 30, 2017, Linsy issued a written charge of a rule violation to
Lamar. In her written report, Linsy stated that she had been assigned to investigate
an incident involving Lamar and his use of “state property to manufacture a direct
involvement in writing, circulating or signing a petition, letter, or similar declaration
that poses a threat to the security of the facility.” Linsy further stated that evidence
had been provided showing that the ADC Inter-Office Communication letterhead
had been used and had been altered to read “Inter-Prison Communication,” and she
charged Lamar with rule violations because the letter “was discovered to have [been]
generated using a computer in the Library [and] encouraged the Inmate population
to band together in order to disrupt unit operation by filing grievances against the
mail policy AD 17-23.” The specific rule violations that Linsy alleged occurred
were “direct involvement in writing, circulating or signing a petition, letter, or
similar declaration that poses a threat to the security of the facility,” “[f]ailure to
obey verbal and/or written order(s) of staff,” “[u]nauthorized use of state
property/supplies,” and “[a]sking, coercing or offering inducement to anyone to
violate Department policy or procedure, inmate rules and regulations, center/unit
operating procedures.”

       On the same day that Linsy issued the written charge of a rule violation, ADC
officials placed Lamar in isolation despite having had a previously scheduled
classification hearing that same day, where he was promoted from a more restrictive
Class IV status to a less restrictive Class III status. He remained there for two to
three days before officials transferred him to administrative segregation at the
Varner Supermax Unit. Less than a week later, a classification review committee
held a hearing and decided to keep Lamar in restrictive housing, noting his pending
                                          -4-
charge of a rule violation. However, on September 11, 2017, Linsy’s disciplinary
charges against Lamar were dismissed on procedural grounds because the charging
document did not contain the proper information regarding the beginning and end of
the investigation. On September 14, 2017, the classification committee held another
hearing on Lamar’s classification. At this meeting, Lamar threatened to sue
Defendants if they did not release him from administrative segregation because he
believed he was being retaliated against for exercising his First Amendment rights
and encouraging other inmates to do the same. An exchange between Lamar and
Warden James Gibson brought the meeting to an end, and the committee thereafter
voted to keep Lamar in restrictive housing. Lamar was released from administrative
segregation on September 20, 2017, for the stated reason that more space was needed
for other inmates. He then filed suit, alleging that Defendants retaliated against him
by giving him a written charge of a rule violation and placing him in isolation and
administrative segregation because he circulated the memorandum encouraging
other inmates to file grievances, threatened to sue ADC officials, and filed a
grievance against Linsy.

        Defendants moved for summary judgment on Lamar’s claims, after which
Lamar filed a motion for an extension of time to respond to Defendants’ motion and
to file his own motion for summary judgment. A magistrate judge granted the
motion insofar as it sought an extension to respond to Defendants’ motion but denied
it as to Lamar’s request for an extension of time to file his own summary judgment
motion, stating that the deadline for dispositive motions had passed and that Lamar
failed to show good cause for extending the deadline. The magistrate judge rejected
Lamar’s argument that he needed an extension of time to file his own motion because
Defendants had intentionally withheld a copy of his deposition transcript, noting that
Defendants were not obligated to provide him with a copy before filing their
summary judgment motion and that Lamar could have filed his own motion for
summary judgment relying on a sworn affidavit instead of his deposition testimony.
Finally, the magistrate judge noted that it had already granted the parties an
extension of time to file dispositive motions and, in granting that extension, stressed
that further extensions of time were unlikely to be granted given that the case was
                                         -5-
nearly three years old at that point and dispositive motions had yet to be filed. Lamar
appealed this ruling to the district court, which concluded that the magistrate judge’s
decision was not clearly erroneous or contrary to the law.

       Lamar filed a response to Defendants’ motion, stating that he was no longer
pursuing his constitutional challenge to the policy and his retaliation claim against
one defendant, Randy Straughn. However, Lamar continued to pursue retaliation
claims against the remaining Defendants. Specifically, Lamar continued to pursue
his claim against Linsy that she retaliated against him for filing a grievance against
her by issuing him a written charge of a rule violation related to the circulation of
the memorandum and his claim that Defendants retaliated against him for circulating
the memorandum and threatening to sue Defendants by putting him in or keeping
him in isolation or administrative segregation.

       The magistrate judge issued a report and recommendation recommending that
the district court grant Defendants’ summary judgment motion. The report and
recommendation first determined that Linsy was entitled to summary judgment on
Lamar’s retaliation claim against her, concluding that the record contained evidence
that Lamar had committed a rules violation by circulating the memorandum
encouraging other inmates to file grievances about the new administrative directive
and by using state property to create the memorandum, relying on statements Lamar
made during his deposition in relation to this action. Because there was evidence of
a rule violation, the magistrate judge determined that Lamar could not show that
Linsy retaliated against him, relying on case law dictating that a written charge of a
rule violation cannot be retaliatory if it is issued for violation of prison rules and that
a defendant can prevail on a retaliation claim by showing “some evidence” of a
violation of a prison rule. The magistrate judge similarly recommended that
Defendants be granted summary judgment on Lamar’s retaliation claim stemming
from ADC officials’ decision to place him in isolation or administrative segregation.
The magistrate judge concluded that because Lamar’s circulation of the
memorandum was a violation of prison rules, it was not protected activity, and, even
though Lamar’s written charge of a rule violation was dismissed on procedural
                                           -6-
grounds, Defendants did not retaliate against him by keeping him in administrative
segregation after its dismissal because “it is undisputed that [Lamar] was guilty of
violating prison rules as charged.” The district court adopted the magistrate judge’s
recommended disposition in full and without additional comment, entering summary
judgment in favor of Defendants and dismissing Lamar’s claims with prejudice.
Lamar now appeals, asserting that the district court erred in granting summary
judgment to Defendants and in denying him an extension of time to file his own
summary judgment motion.

                                         II.

       Lamar first asserts that the district court erred in granting summary judgment
to Defendants on his retaliation claims, arguing that the district court erroneously
relied on a written charge of a rule violation that was dismissed on procedural
grounds and testimony from Lamar’s deposition—taken four years after the
incidents relevant to this case—to conclude that there was “some evidence” that
Lamar violated prison rules. 2 “‘We review de novo a district court’s grant of
summary judgment.’ Summary judgment is proper only if ‘there is no genuine issue
as to any material fact’ and ‘the moving party is entitled to judgment as a matter of
law.’” Avenoso v. Reliance Standard Life Ins. Co.,
19 F.4th 1020, 1024
 (8th Cir.
2021) (citation omitted).

      “‘The First Amendment prohibits laws “abridging the freedom of speech.”’
Thus, ‘as “a general matter,”’ the First Amendment ‘prohibits government officials
from subjecting individuals to “retaliatory actions” after the fact for having engaged

      2
       Defendants assert that we need not reach the merits of Lamar’s appeal,
arguing that “this Court ‘cannot tell whether the district court erred in a ruling’
because Lamar did not ‘direct [the Court] to a place in the record’ where the alleged
error can be found.” Given that we liberally construe pro se filings, see Stone v.
Harry,
364 F.3d 912, 914
 (8th Cir. 2004), and that Lamar clearly stated the basis for
his argument that the district court erred, we reject Defendants’ contention that,
because Lamar did not include specific record citations, we should not address the
merits of his appeal.
                                        -7-
in protected speech.’” Aldridge v. City of St. Louis,
75 F.4th 895, 898
 (8th Cir.
2023) (citations omitted). A plaintiff alleging a § 1983 First Amendment retaliation
claim must show: “(1) that he engaged in a protected activity; (2) that the
government official took adverse action against him that would chill a person of
ordinary firmness from continuing in the activity; and (3) that the adverse action was
motivated at least in part by the exercise of the protected activity.” Santiago v. Blair,
707 F.3d 984, 991
 (8th Cir. 2013).

       The parties do not dispute that Lamar engaged in protected conduct by filing
a grievance and threatening to sue Defendants. See Spencer v. Jackson Cnty.,
738 F.3d 907, 913
 (8th Cir. 2013) (“Filing a prison grievance has long been ‘protected
First Amendment activity’. . . .”); Haynes v. Stephenson,
588 F.3d 1152, 1155-56
(8th Cir. 2009) (“The filing of a prison grievance, like the filing of an inmate lawsuit,
is protected First Amendment activity.” (citation omitted)); Entler v. Gregoire,
872 F.3d 1031, 1039
 (9th Cir. 2017) (“‘[T]he applicability of the constitutional right to
redress of grievances does not hinge on the label the prison places on a particular
complaint,’ and embraces threats to sue.” (citation omitted)). We also conclude that
Lamar’s circulation of the memorandum encouraging inmates to file grievances is
protected conduct. This Court has permitted a prison to suppress petitions or
otherwise limit an inmate’s efforts to encourage other inmates to use the prison
grievance process, but only where the activity created a security concern for the
prison facility, implicitly recognizing that, without a security concern, this activity
is protected conduct. See Nickens v. White,
622 F.2d 967, 970-71
 (8th Cir. 1980)
(holding that prison’s suppression of prisoners’ group petition was justified based
on reasonable security concerns “despite the evident restriction of appellant’s right
to freedom of expression”); Rouse v. Benson,
193 F.3d 936, 941
 (8th Cir. 1999)
(citing Nickens for proposition that there is no constitutional right to incite other
inmates to file grievances but acknowledging that restrictions on such conduct are
based on reasonable security concerns). Here, construing the facts in the light most
favorable to Lamar, as we must, there is insufficient evidence to demonstrate that
Lamar’s circulation of the memorandum created a security concern; the only
evidence suggesting that a security concern existed was Linsy’s characterization of
                                          -8-
the memorandum in the written charge of a rule violation as “encourag[ing] the
Inmate population to band together in order to disrupt unit operation.” In contrast,
the language of the memorandum urging the inmates to “peacefully” band together
to challenge the administrative directive suggests that Lamar did not intend to disrupt
the unit’s operation. Without further record evidence demonstrating a threat to
prison security, on the record before us, we conclude that Lamar’s circulation of the
petition falls within the ambit of conduct protected by the First Amendment.

       Lamar has likewise shown that he suffered an adverse action in the form of a
written charge of a rule violation and being placed in isolation or administrative
segregation because a reasonable jury could conclude that being placed in segregated
housing or being subject to additional disciplinary actions would “chill a person of
ordinary firmness” from engaging in the First Amendment conduct Lamar engaged
in. Santiago,
707 F.3d at 991
; see also Nelson v. Shuffman,
603 F.3d 439, 450
 (8th
Cir. 2010) (finding an adverse action where plaintiff detainee was placed in isolation
without access to mail, family, recreation, and phone calls).

       Turning to the final element, whether the adverse action was motivated at least
in part by Lamar’s protected conduct, the record shows that Lamar received a written
charge of a rule violation specifically related to his circulation of the memorandum,
that he was placed in isolation the same day as his classification hearing, at which it
was recommended that he be placed in a lower classification, that he was kept in
administrative segregation after his written charge was dismissed on procedural
grounds, and that there is a close temporal proximity between Lamar’s protected
conduct and the complained-of adverse actions. When construing the evidence in
the light most favorable to Lamar, a reasonable jury could conclude that Defendants
were at least partially motivated by Lamar’s protected conduct in taking the adverse
actions against him.

       We note, however, that while “‘[a] prisoner has a cause of action when the
prisoner alleges that prison officials filed disciplinary charges based upon false
allegations against the prisoner in retaliation for the prisoner’s participation in
                                         -9-
grievances against prison officials’ . . . ‘claims of retaliation fail if the alleged
retaliatory conduct violations were issued for the actual violation of a prison rule.’”
Santiago,
707 F.3d at 993
 (citations omitted). Further, Defendants “may
successfully defend a retaliatory discipline claim by showing ‘some evidence’ [that
Lamar] actually committed a rule violation.”
Id.
 (citation omitted). To demonstrate
“some evidence” of a rule violation, Defendants may rely on “a report from a
correctional officer, even if disputed by [Lamar] and supported by no other
evidence . . . if the violation is found by an impartial decision maker.”
Id.
 (citation
omitted).

       Here, it is undisputed that Linsy issued a written charge of a rule violation to
Lamar based on his circulation of the memorandum. However, as Lamar notes, that
written charge was undisputedly dismissed on procedural grounds; because no
impartial decision-maker reviewed the violation, it cannot serve as “some evidence”
of a violation of a prison rule. The district court thus erred in relying on the written
charge as evidence of Lamar’s violation of prison rules. So too did the district court
err in relying on Lamar’s admissions during his deposition, four years after the
incident, that he violated prison rules by circulating the memorandum. Lamar’s
opinions, given years later, are irrelevant to the question of whether Linsy issued the
written charge for a violation of a prison rule because they were not known to Linsy
at the time of the charge. Therefore, they cannot have formed any part of her
motivation in issuing the charge. Because there is no other record evidence to satisfy
the “some evidence” standard, the district court erred in granting summary judgment
to Defendants on this basis.

                                          III.

       Lamar also asserts that the magistrate judge erred when it denied his motion
for an extension of time to file a motion for summary judgment. Lamar argues that
Defendants’ attorneys deliberately withheld the transcript of his deposition—which
he needed to be able to properly prepare a summary judgment motion—until the
deadline passed. We review the denial of a motion to extend the time for filing a
                                         -10-
dispositive motion for an abuse of discretion. See Patterson v. Kelley,
902 F.3d 845, 850
 (8th Cir. 2018). The magistrate judge did not abuse his discretion in denying
Lamar an extension of time, particularly given that it was the second extension
Lamar requested and the district court, in granting the original extension to both
parties, expressly stated that future extensions were unlikely due to the age of the
case. In denying Lamar’s request for a second extension of time, the magistrate
judge stated:

      The deadline for filing motions for summary judgment has expired, and
      Plaintiff fails to make a showing of good cause for extending it at this
      point. The fact that he didn’t receive a copy of his deposition transcript
      until September 18, 2021 fails to explain why he didn’t file a motion for
      summary judgment or seek an extension of time to do so earlier. First,
      Defendants were not obligated to provide him with a copy of his
      deposition transcript until they attached it to the summary judgment
      motion filed on September 16, 2021. Second, Plaintiff did not need his
      deposition transcript to file a motion for summary judgment because he
      could have included a sworn affidavit in support of the motion. Third,
      the Court has repeatedly stressed that due to the age of this case, it was
      unlikely that any further extensions would be granted. See Text Orders
      94, 97. For all of these reasons, the Court denies Plaintiff’s motion to
      allow him a sixty-day extension to file a motion for summary judgment.

Lamar does not challenge any of the reasons given by the magistrate judge; he
merely disagrees with the reasoned decision to deny him an extension of time. On
this record, we find no abuse of discretion in that decision. See Grandson v. Univ.
of Minn.,
272 F.3d 568
, 574 (8th Cir. 2001) (concluding that the district court acted
“well within its discretion” in denying motion for an extension of time to file
dispositive motions because plaintiffs “had ‘no credible excuse’” for not filing the
motion before the deadline or seeking an extension of time before the deadline lapsed
(citation omitted)).




                                        -11-
                                       IV.

       For the foregoing reasons, we reverse the district court’s grant of summary
judgment but affirm the denial of Lamar’s motion for an extension of time to file a
summary judgment motion. We also grant Lamar’s motion to file a supplemental
brief and addendum.
                       ______________________________




                                       -12-