Kenneth Lockamy v. Stevie Rodriguez, et al

Filing

UNPUBLISHED OPINION FILED. [10-10332 Affirmed ] Judge: WED , Judge: JES , Judge: LHS Mandate pull date is 12/15/2010 [10-10332]

Kenneth Lockamy v.Case: Rodriguez, et Document: 00511303649 Stevie 10-10332 al

Page: 1 Date Filed: 11/24/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 10-10332 S u m m a r y Calendar November 24, 2010 Lyle W. Cayce Clerk

K E N N E T H ALDEN LOCKAMY, P la in t if f -A p p e lla n t , versu s S T E V I E RODRIGUEZ, Officer; GARY PERRY, Officer; JERRY SERRANO, Officer; BLENDIA YOUNG, Officer; RODRIGUEZ 12:20, Officer; JOSE LERMA, Officer; FREDRICK GONZALES, Officer; EUGENE WEITMAN, Officer; ROBERT REMERO, Officer; EVONNE SAPP, Officer; GOLDIE MCCOLLOUGH, Officer; SAMUEL AGUILAR, Officer; RICKY RODRIGUEZ, Defendants-Appellees.

A p p e a l from the United States District Court fo r the Northern District of Texas N o . 5:08-CV-21

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Case: 10-10332 Document: 00511303649 Page: 2 Date Filed: 11/24/2010 No. 10-10332 B e fo r e DAVIS, SMITH, and SOUTHWICK, Circuit Judges. P E R CURIAM:*

K e n n e t h Lockamy, Texas prisoner # 1313595, appeals a summary judgm e n t in his 42 U.S.C. § 1983 civil suit in which he claimed that prison officials h a d violated his Eighth Amendment right against cruel and unusual punishm e n t by depriving him of six meals over a 54-hour period. Lockamy contends t h a t the district court erred in concluding that he had not alleged that he suffe r e d any adverse physical effects from missing any meals and had failed to state a claim of retaliation. A summary judgment is reviewed de novo. Berquist v. Wash. Mut. Bank, 5 0 0 F.3d 344, 348 (5th Cir. 2007). This court views all facts and evidence in the lig h t most favorable to the non-moving party. United Fire & Cas. Co. v. Hixson B r o s , 456 F.3d 283, 285 (5th Cir. 2006). If a motion for summary judgment is p r o p e r ly supported, the opposing party "may not rely merely on allegations or d e n ia ls in its own pleadings" but must, in its response, "set out specific facts s h o w in g a genuine issue for trial."1 This court views all facts and evidence in the lig h t most favorable to the non-moving party. United Fire & Cas. Co. v. Hixson B r o s , 456 F.3d 283, 285 (5th Cir. 2006). Even if we disagree with the reasons g iv e n by the district court to support summary judgment, we "may affirm the d is t r ic t court's ruling on any grounds supported by the record." Berquist, 500 F .3 d at 349. "Prison officials have a constitutional obligation to provide reasonably ade-

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. Rule 56(e)(2); see also Hathaway v. Bazany, 507 F.3d 312, 319 (5th Cir. 2007) (noting that a nonmovant cannot satisfy his summary judgment burden "with conclusory allegations, unsubstantiated assertions, or only a scintilla of evidence") (internal quotation marks and citations omitted).
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Case: 10-10332 Document: 00511303649 Page: 3 Date Filed: 11/24/2010 No. 10-10332 q u a t e food" to inmates.2 To state an Eighth Amendment claim, Lockamy must s h o w that the conditions were "so serious as to deprive him of the minimal meas u r e of life's necessities, as when denied some basic human need." Berry, 192 F .3 d at 507. He also must show that prison officials acted with deliberate indiffe r e n c e , such that the officials were aware of facts from which an inference of the s u b s ta n t ia l risk of serious harm could be drawn and that the officials actually d r e w this inference. See Farmer v. Brennan, 511 U.S. 825, 834, 837 (1994). Courts consider the amount and duration of the deprivation of food in determinin g whether a constitutional right has been infringed and have recognized that t h e provision of two meals a day may be adequate to meet the minimal measure o f life's necessities. Berry, 192 F.3d at 507. In Berry, we held that the deprivation of eight meals over a seven-month p e r io d did not deprive an inmate of the minimal measure of life's necessities. Id. a t 506-08. We concluded that Berry's allegations did not rise to the level of an E ig h t h Amendment violation. because he had not alleged specific physical harm, o t h e r than hunger pains. Id. at 508. Nor had he alleged that he suffered weight lo s s , other adverse physical effects, or health risks or that he was denied a "nut r it io n a lly and calorically adequate diet." Id. The district court, relying on Berry, concluded that although there was a fa c t issue regarding whether Lockamy had been deprived of every meal during t h e 54-hour period, he still had failed to state an Eighth Amendment claim, bec a u s e he had not alleged that he suffered physical injury as a result of missing a n y meals. Lockamy contends that his assertion that he had caused two self-inflic t e d injuries as a result of being deprived food was sufficient to allege a physic a l injury. His summary judgment evidence, however, did not include any facts o r medical evidence from which the district court could conclude that any alleged

Eason v. Thaler, 14 F.3d 8, 10 (5th Cir. 1994) (footnotes omitted); see Berry v. Brady, 192 F.3d 504, 507 (5th Cir. 1999) (recognizing that inmates should be provided with balanced meals that have sufficient nutritional value to maintain health).

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Case: 10-10332 Document: 00511303649 Page: 4 Date Filed: 11/24/2010 No. 10-10332 d e p r iv a t io n of food was the actual cause of his self-inflicted wounds. In fact, he a c k n o w le d g e d that he had a well-documented history of causing harm to himself t h a t predated the events surrounding this case. His unsubstantiated assertion t h a t he harmed himself because he was deprived of food cannot satisfy the s u m m a r y judgment burden. See Hathaway, 507 F.3d at 319. T o state a retaliation claim, "a prisoner must allege (1) a specific constitut io n a l right, (2) the defendant's intent to retaliate against the prisoner for his or h e r exercise of that right, (3) a retaliatory adverse act, and (4) causation." Jones v . Greninger, 188 F.3d 322, 324-25 (5th Cir. 1999). After showing invocation of a constitutional right, the prisoner must "produce direct evidence of motivation" o r "allege a chronology of events from which retaliation may plausibly be infe r r e d ." Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995) (internal quotation m a r k s and citations omitted). Furthermore, the retaliatory adverse act must be m o r e than de minimis to state a viable retaliation claim; the act must be "capab le of deterring a person of ordinary firmness from further exercising his constit u t io n a l rights." Morris v. Powell, 449 F.3d 682, 686 (5th Cir. 2006). Lockamy provides no concrete evidence to establish that any acts of food d e p r iv a t io n were directly motivated by retaliation. In addition, he fails to prod u c e a chronology of events from which retaliation could be plausibly inferred. H is speculation that officers maliciously deprived him of food as a result of a c a m p a ig n of retaliation is not enough to state a constitutional claim. See Woods, 6 0 F.3d at 1166. Moreover, his personal belief that he was the victim of retaliat io n is not sufficient to support a retaliation claim. Jones, 188 F.3d at 325. An e ffo r t to show of retaliation places a heavy burden on prisoners, and mere conc lu s io n a l allegations are not enough.3 Accordingly, the judgment is AFFIRMED.

Woods, 60 F.3d at 1166; see also Al-Ra'id v. Ingle, 69 F.3d 28, 32 (5th Cir. 1995) (stating that conclusory allegations of malice are not sufficient to maintain a retaliation claim).

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