Justice v. Kennedy et al

Filing 77

ORDER granting 71 Motion for Summary Judgment.(Signed by Magistrate Judge Jason B. Libby) Parties notified.(mserpa, )

Justice v. Kennedy et al

Doc. 77

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
MICHAEL L JUSTICE,

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Plaintiff,
VS.
E KENNEDY, et al,
Defendants.

CIVIL ACTION NO. 2:12-CV-5

ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT
On January 28, 2011, a Texas prisoner named Elmer Aaron died in a coma following an
altercation with the plaintiff herein, Michael Justice. In the instant prisoner civil rights action,
plaintiff claims that certain McConnell Unit officers and officials failed to protect him when they
allowed him to be housed with the now deceased Aaron. In addition, plaintiff alleges that certain
defendants retaliated against him for filing grievances, in violation of his First Amendment
rights.
Defendants move for summary judgment to dismiss plaintiff’s Eighth Amendment failure
to protect claims on the grounds of failure to exhaust administrative remedies, and to dismiss his
retaliation claim for failure to establish the “but-for” causation necessary to state a cognizable
claim. (D.E. 71). Plaintiff has not filed a response in opposition.
For the reasons stated herein, defendants’ motion for summary judgment is granted, and
this case is dismissed with prejudice.

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Dockets.Justia.com

I.

Jurisdiction.
The Court has federal question jurisdiction over this action pursuant to 28 U.S.C.

§ 1331.

Upon consent of the parties (D.E. 11, 76), this case was referred to the undersigned

United States magistrate judge to conduct all further proceedings, including entry of final
judgment. See 28 U.S.C. § 636(c).
II.

Procedural background.
Plaintiff is an inmate in the Texas Department of Criminal Justice, Criminal Institutions

Division (“TDCJ-CID”), and is currently confined at the McConnell Unit in Beeville, Texas. He
filed his original complaint on November 28, 2011, alleging various constitutional claims against
numerous TDCJ-CID defendants. (D.E. 1).
On August 8, 2012, a Spears1 hearing was conducted and following which, certain of
plaintiff’s claims and defendants were dismissed, while the Court retained plaintiff’s failure to
protect claims against then unidentified John/Jane Doe correctional officers, and retained his
retaliation claims against Food Service Captain Juan Salazar and the Law Librarian, Candace
Moore.2 (D.E. 18).
By advisories filed on October 11, and November 29, 2012, the Attorney General, as
Amicus Curie, reported that it could not identify the John/Jane Doe defendants whom plaintiff
alleged failed to protect him by placing him in a cell with Offender Aaron. (D.E. 32, 42). In
response, a telephone conference was conducted on December 11, 2012, at which time plaintiff

1

Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).

2

Plaintiff appealed the Order Dismissing Certain Claims and Retaining Case. (D.E. 24). The Fifth Circuit
dismissed the appeal as premature as no final judgment has yet been entered in this case. (D.E. 64).

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identified the defendants to be Officer Susan Sheelar, Officer Sylvia Brown, and Officer Andre
Cantu.
Defendants were served on various dates and filed their answers. (See D.E. 33, 51, 56).
Following an extension of time (D.E. 65), defendants filed the instant motion for
summary judgment on April 19, 2013. (D.E. 71).
To date, plaintiff has not filed a response in opposition to defendants’ summary judgment
motion.3
III.

Summary judgment evidence.
In support of their motion for summary judgment, defendants offer the following

evidence:
Ex. A:

Relevant portions of plaintiff’s medical records;

Ex. B:

Report of the Office of Inspector General for Criminal Case No.
2010.04225;

Ex. C:
Ex. D:

Affidavit of Sylvia Brown;

Ex. E:

Affidavit of Susan Sheelar;

Ex. F:

Affidavit of Juan Salazar;

Ex. G:

Affidavit of Candace Moore;

Ex. H:

Affidavit of Andre Cantu; and

Ex. I:

3

Relevant portions of plaintiff’s grievance records;

Affidavit of Warden Gary Currie.

Pursuant to Local Rule 7.4, failure to respond is taken as a representation of no opposition.

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The summary judgment evidence establishes the following:
Facts concerning the 12/21/10 encounter between plaintiff and Offender Aaron.
On December 21, 2010, plaintiff’s cell assignment at the McConnell Unit was changed to
7-Building, G-pod, 59-cell, and he was moved to that new housing assignment that same date.
Defendant Officer Andre Cantu escorted plaintiff from his previous housing assignment to his
new cell assignment on 7-Building. (DSJ Ex. H, Cantu Aff’t at ¶ 4).
At approximately 7:30 p.m. that evening, plaintiff called out to the roving officer, Officer
Jessie Sanchez, and informed him that Offender Elmer Aaron needed to be removed from the
cell, stating “[c]ause I just beat his ass.”4 (DSJ Ex. B, OIG-197). Medical personnel arrived to
find Offender Aaron unconscious in plaintiff’s cell.

Id. OIG-50.

Offender Aaron was

transported to Christus Spohn Hospital in Beeville where he remained in a coma and on life
support. Id., OIG-76-89. On December 22, 2011, Offender Aaron was transferred to the
intensive care unit at Christus Spohn Memorial Hospital in Corpus Christi, Texas. Id., OIG-90116. An MRI of his brain revealed significant brainstem injury “possibly related to direct
assault,” and he remained unresponsive. Id., OIG-116. On December 28, 2010, Offender Aaron
was transferred to Hospital Galveston for continued care in a persistent vegetative state. Id.,
OIG-165. On January 21, 2011, Offender Aaron was discharged to the Michael Unit for hospice.
Id., OIG-176. Offender Aaron was pronounced dead on January 28, 2011. Id., OIG-207-08.
Anderson County authorities ordered an autopsy and investigation into Offender Aaron’s
death. (DSJ Ex. B, OIG-209). The preliminary cause of death found by the Galveston County
Medical Examiner’s Office was homicide. Id., OIG-191.

4

In an investigation of the altercation, it was alleged that plaintiff did not want to be in a cell with
Offender Aaron because he believed Aaron was a homosexual. (DSJ Ex. B, OIG-12). Offender Aaron
made advances toward plaintiff, and in response, plaintiff “began punching and kicking Offender Aaron
60 to 100 times.” Id.

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On December 22, 2010, the date following plaintiff’s altercation with Offender Aaron,
plaintiff was charged in a prison disciplinary hearing with assault without a weapon. (DSJ Ex.
B, OIG-193). A disciplinary hearing was held on December 30, 2010, but plaintiff refused to
attend. Id. at 202. The disciplinary hearing officer reviewed a photograph of Offender Aaron’s
documented injuries, as well as Aaron’s medical reports as of the date of the hearing, and found
plaintiff guilty as charged. Id. at 193. As punishment, plaintiff received 15 days recreation
restriction, loss of 30 days commissary, and loss of 319 days good time credit. Id.
Following Offender Aaron’s death, on February 2, 2011, Investigator David M. Guajardo
with the Office of the Inspector General (“OIG”) informed plaintiff that he was a suspect in the
homicide of Offender Aaron and he read plaintiff his Miranda rights. (DSJ Ex. B, OIG-40-41).
Plaintiff refused to sign the written warning statement. Id.
On November 21, 2011, the OIG prepared its written report and investigation alleging
that on December 21, 2010, plaintiff had murdered Offender Elmer Aaron without a weapon in
violation of Texas Penal Code § 19.02(b)(1). (DSJ Ex. B, OIG at 8-41).
On March 8, 2012, the OIG presented its written report and investigation concerning
Offender Aaron’s death to the Special Prosecuting Unit (“SPU”) in Bee County, Texas, and the
SPU accepted the charges. (DSJ Ex. B, OIG at 5-6).
On March 29, 2012, a Bee County Jury no billed plaintiff on the murder charge. (DSJ
Ex. B, OIG-5). A notation in the OIG file states that all of the evidence had been lost. Id.
Plaintiff’s grievances.
On March 18, 2011, plaintiff filed a Step 1 grievance, Grievance No. 2011121224,
alleging that on February 14 and 27, and March 12, 2011, defendant Candace Moore, the
McConnell Unit law librarian, had refused to respond to I-60s seeking “legal” information

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concerning the criminal charges against him. (DSJ Ex. C at 27-28). In particular, plaintiff had
sent I-60s to Ms. Moore requesting under the Opens Records Act the names of the employees
who had worked on December 21, 2010.5 Id. He claimed also that he had been denied legal
supplies. Id. An investigation was conducted on plaintiff’s claims, and by response dated April
13, 2011, Warden Davis denied the grievance stating that plaintiff could not be provided with a
copy of the “216 Activity Log,” and also finding that plaintiff had received his indigent supplies
per TDCJ policy. Id. at 28. Plaintiff appealed that grievance, (DSJ Ex. C at 19-20), and on May
13, 2011, the Region IV Grievance Investigator Vicki Barrow replied that, for access to courts
purposes, offenders were entitled to receive only copies of TDCJ documents listed on “ORA01.02,” a copy of which she attached to her response, as well as a “current employee roster” from
the law library. Id. at 20.
On July 6, 2011, plaintiff filed a Step 1 grievance, Grievance No. 2011192187,
complaining that Ms. Moore had denied him indigent supplies, and he requested that he be
provided 25 pieces of paper and 1 pencil. (DSJ Ex. C at 17-18). By response dated August 9,
2011, Warden Jackson denied the grievance stating that records reflected plaintiff had been
issued additional supplies as he exhausted earlier supplies.6 Id. at 18.
On August 2, 2011, plaintiff filed a Step 1 grievance, Grievance No. 2011208834,
complaining that Ms. Moore had denied him the ability to send personal mail on July 20, 29, and
August 1, 2011, and had also denied him indigent legal supplies. (DSJ Ex. C at 4-5). An

5

Plaintiff explained that he wanted to provide the names of the officers working the evening of December
21, 2010, to his criminal defense lawyer in preparation for his criminal trial in Bee County. (DSJ Ex. C at
27).
6
On August 23, 2011, plaintiff filed a Step 2 appeal of Grievance No. 2011192187. (DSJ Ex. C at 1516). On September 22, 2011, his Step 2 appeal was denied.

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investigation was conducted, and by response dated September 7, 2011, the Step 1 grievance was
denied.7 Id. at 5.
IV.

Summary judgment standard.
Summary judgment is proper if there is no genuine issue as to any material fact and the

moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). A genuine issue
exists “if the evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Court must examine
“whether the evidence presents a sufficient disagreement to require submission to a jury or
whether it is so one-sided that one party must prevail as a matter of law.” Id. at 251-52. In
making this determination, the Court must consider the record as a whole by reviewing all
pleadings, depositions, affidavits and admissions on file, and drawing all justifiable inferences in
favor of the party opposing the motion. Caboni v. Gen. Motors Corp., 278 F.3d 448, 451 (5th
Cir. 2002). The Court may not weigh the evidence, or evaluate the credibility of witnesses. Id.
Furthermore, “affidavits shall be made on personal knowledge, shall set forth such facts as would
be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to
the matters stated therein.” Fed. R. Civ. P. 56(e); see also Cormier v. Pennzoil Exploration &
Prod. Co., 969 F.2d 1559, 1561 (5th Cir. 1992) (per curiam) (refusing to consider affidavits that
relied on hearsay statements); Martin v. John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th
Cir. 1987) (per curiam) (stating that courts cannot consider hearsay evidence in affidavits and
depositions). Unauthenticated and unverified documents do not constitute proper summary
judgment evidence. King v. Dogan, 31 F.3d 344, 346 (5th Cir. 1994) (per curiam).

7

On September 15, 2011, plaintiff filed a Step 2 appea1 of Grievance No. 2011208834l. (DSJ Ex. C at 34). The Step 2 appeal was denied on October 7, 2011, with the finding that the Step 1 response had
adequately addressed plaintiff’s complaint.

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The moving party bears the initial burden of showing the absence of a genuine issue of
material fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

If the moving party

demonstrates an absence of evidence supporting the nonmoving party’s case, then the burden
shifts to the nonmoving party to come forward with specific facts showing that a genuine issue
for trial does exist. Matsushita Elec. Indus. Co. v. Zenith Radio Corp ., 475 U.S. 574, 587
(1986). To sustain this burden, the nonmoving party cannot rest on the mere allegations of the
pleadings. Fed. R. Civ. P. 56(e); Anderson, 477 U.S. at 248. “After the nonmovant has been
given an opportunity to raise a genuine factual issue, if no reasonable juror could find for the
nonmovant, summary judgment will be granted.” Caboni, 278 F.3d at 451. “If reasonable minds
could differ as to the import of the evidence ... a verdict should not be directed.” Anderson, 477
U.S. at 250-51.
The evidence must be evaluated under the summary judgment standard to determine
whether the moving party has shown the absence of a genuine issue of material fact. “[T]he
substantive law will identify which facts are material. Only disputes over facts that might affect
the outcome of the suit under the governing law will properly preclude the entry of summary
judgment.” Id. at 248.
V.

Defendants’ summary judgment motion.
In his original complaint and at the August 6, 2012 evidentiary hearing, plaintiff alleged

that on December 21, 2010, Officer John Doe (later identified as Officer Cantu), escorted him
from his previous housing to 7-Building, and at 7-Building, Officer Cantu transferred him to the
custody of two Jane Doe officers, now identified as Officer Sheelar and Officer Brown. He
alleged that he told defendants that “something was wrong” with Offender Aaron, although he
admitted that he did not refuse his cell assignment or ask to speak to a supervisor. Plaintiff

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contends that Officer Cantu, Officer Sheelar, and Officer Brown were deliberately indifferent to
his safety by participating in his transfer to the new cell in 7-Building. Officers Sheeler, Brown
and Cantu move for summary judgment to dismiss plaintiff’s claims for failure to exhaust
administrative remedies arguing that plaintiff never filed a grievance alleging failure to protect
against them, or otherwise notifying defendants or prison officials that plaintiff believed these
defendants had violated his constitutional rights.8
A.

Exhaustion.
The Prison Litigation Reform Act, 42 U.S.C. § 1997e, provides:
No action shall be brought with respect to prison conditions under
section 1983 of this title, or any other Federal law, by a prisoner
confined in any jail, prison, or other correctional facility until such
administrative remedies as are available are exhausted.

42 U.S. C. § 1997e(a).
The exhaustion requirement applies to all inmate suits about prison life, whether
involving general circumstances or specific incidents. Porter v. Nussle, 534 U.S. 516, 532
(2002); Clifford v. Gibbs, 298 F.3d 328, 330 (5th Cir. 2002). Moreover, a prisoner is required to
exhaust his administrative remedies even if damages are unavailable through the grievance
process. Booth v. Churner, 532 U.S. 731, 734 (2001); Wright v. Hollingsworth, 260 F.3d 357,
358 (5th Cir. 2001). A prisoner must complete the administrative review process in accordance
with all procedural rules, including deadlines, as a precondition to bringing suit in federal court.
8

These defendants also move for summary judgment on the merits of plaintiff’s claims. Officer Sheelar
testifies that she did not work on December 21, 2010, and as such, could not have participated in
escorting plaintiff to the new cell or placing him in a cell with Offender Aaron. (DSJ Ex. E, Sheelar Aff’t
at ¶ 4). Indeed, Officer Sheelar offers the shift rosters to demonstrate that she was not working on that
date. Id. Officer Brown testifies that on December 21, 2010, she was posted as the 3 Building Picket
Officer for the first half of the shift, from 6:00 p.m. to midnight, and that as the picket officer, she would
not have escorted any prisoner, and did not escort plaintiff, to his new cell in 7-Building. (DSJ Ex. D,
Brown Aff’t at ¶ ¶ 4, 5). Finally, Officer Cantu testifies that he did work as a chain officer on December
21, 2010, and as such, he may have escorted plaintiff to his new housing assignment as part of his duties;
however, he states that, had plaintiff attempted to deny his housing assignment, a supervisor would have
been called, and there is no evidence that this occurred. (DSJ Ex. H, Cantu Aff’t at ¶ ¶ 4, 5).

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Woodford v. Ngo, 548 U.S. 81, 83 (2006). Because exhaustion is an affirmative defense, inmates
are not required to plead or demonstrate exhaustion in their complaints. Jones v. Bock, 549 U.S.
199, 215 (2006).
The TDCJ provides a two-step procedure for presenting administrative grievances. Powe
v. Ennis, 177 F.3d 393, 394 (5th Cir. 1999) (per curiam).

The Fifth Circuit requires that both

steps be completed in order to file suit in federal court. Johnson v. Johnson, 385 F.3d 503, 51516 (5th Cir. 2004).9
The summary judgment evidence establishes that, during the time period of June 2010 to
the present, plaintiff filed three Step 1 grievances and related appeals. (DSJ Ex. C). Of these
three grievances, only Grievance No. 2011121224, filed on March 18, 2011, could be construed
as referring to defendants Sheelar, Brown, and Cantu. (DSJ Ex. C at 27-28). In that grievance,
plaintiff requests that Librarian Moore provide him with the names of officers working on
December 21, 2010 so that he can provide those names to his criminal attorney concerning the
murder charges filed against him by Bee County. Id. at 27. Plaintiff does not contend in this
grievance that he is seeking to discover the names of these officers because he believes they
failed to protect him on December 21, 2010, or otherwise violated his constitutional rights; he is
simply attempting to gather information for use in his criminal case.

9

Step 1 requires the inmate to present an administrative grievance at his unit within fifteen days from the
date of the issue he is complaining about. Wendell v. Asher, 162 F.3d 887, 891 (5th Cir. 1998). The
inmate should then receive a response from the unit official, and if unsatisfied with the response, the
inmate has ten days to appeal by filing a Step 2 grievance. Wendell, 162 F.3d at 891. Once the two-step
process has been completed, the offender’s administrative remedies within the TDCJ have been
exhausted. See http://www.tdcj.us/publications/admin-rvw/Offender%20Grievance%20pamphlet
%202007.pdf. Thereafter, an inmate dissatisfied with the disposition of his Step 2 grievance may file
suit in district court. See 42 U.S.C. § 1997e(a).

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In Johnson, the Fifth Circuit discussed how much detail is required in a grievance for
purposes of effectively exhausting administrative remedies. Johnson, 385 F.3d at 517. The
Court noted that one of the purposes of the exhaustion requirement is to give officials “‘time and
opportunity to address complaints internally.’” Id. (citations omitted). In addition, the nature of
the complaint will influence how much detail is necessary. Id. For example, a complaint about a
correctional officer would identify a specific person, whereas a complaint about a prison
condition might not identify any individual. Id.
Plaintiff’s Grievance No. 2011121224, requesting the names of numerous officers that
were working on December 21, 2010, does not allege that any of those officers were aware of a
serious risk to his health and safety and then deliberately ignored that risk. See Farmer v.
Brennan, 511 U.S. 825, 847 (1994) (a prison official is deliberately indifferent to the inmate’s
safety if the official knows that the inmate faces a substantial risk of serious harm and disregards
that risk by failing to take reasonable measures to abate it). Indeed, plaintiff’s March 18, 2011
grievance does not purport to complain about the actions or conduct of any officer, let alone a
defendant herein. Thus, this grievance fails to alert prison officials as to plaintiff’s alleged
failure to protect claims against the defendants, the very purpose of the administrative grievance
process. See Woodford v. Ngo, 548 U.S. 81, 94-95 (2006) (noting that the purpose of the
exhaustion requirement is to alert prison officials of problems so that the prison has a chance to
address the claims before they reach federal court). Moreover, at the December 30, 2010
disciplinary hearing, and later, when he was notified by OIG that he was being charged with
murder, plaintiff did not suggest that Officers Sheelar, Brown or Cantu had placed his life in
danger or had failed to protect him in any statement to investigators. (See DSJ Ex. B). Thus,
the uncontroverted evidence establishes that plaintiff did not file a Step 1 or Step 2 grievance

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against defendants Sheelar, Brown, or Cantu, and as such, he has failed to exhaust his
administrative remedies as required by 42 U.S.C. § 1997e(a).
The Fifth Circuit has recognized that the exhaustion requirement may be excused in rare
and extraordinary circumstances. See e.g. Days v. Johnson, 322 F.3d 863 (5th Cir. 2003)
(holding a prisoner who was unable to timely file a grievance due to a physical injury had
satisfied the exhaustion requirement) overruled on other grounds by Jones v. Bock, 549 U.S.
199, 215 (2006). However, in failing to file a response to defendants’ summary judgment
motion, plaintiff has failed to argue, let alone offer any facts to suggest, that he should be
excused from exhausting his administrative remedies. Moreover, there is no evidence to suggest
that plaintiff was physically unable to file grievances. Indeed, following the December 21, 2010
altercation with Offender Aaron, plaintiff was evaluated by medical before being placed in prehearing detention, and he was found to have suffered no injuries.

(DSJ Ex. A at 3-10).

Similarly, plaintiff does not contend, nor is there any evidence to suggest, that prison officials
prevented him from accessing the grievance system, and as evidenced by DSJ Ex. C, plaintiff has
previously grieved other claims.
There is no genuine issue of a material fact that plaintiff has failed to exhaust his
administrative remedies concerning his failure to protect claim against Officer Sheelar, Officer
Brown, and Officer Cantu, and there is no evidence to demonstrate that exhaustion should be
waived. Thus, plaintiff’s failure to protect claims against these officers are dismissed with
prejudice for failure to exhaust administrative remedies.9

9

Generally, a dismissal for failure to exhaust is without prejudice; however, as plaintiff’s grievances
would now be untimely under TDCJ-CID policies, dismissal with prejudice is appropriate. See Marsh v.
Jones, 53 F.3d 707, 710 (5th Cir. 1995) (dismissal with prejudice warranted when administrative relief is
time-barred or otherwise precluded).

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B.

Retaliation.

Plaintiff claims that Ms. Moore and Captain Salazar retaliated against him for filing
grievances.

He alleges that Ms. Moore denied him indigent supplies, including writing

materials, and that Captain Salazar denied him access to a pork-free diet.
Retaliation is not expressly referred to in the Constitution; however, it is nonetheless
actionable because retaliatory actions may tend to chill an individual’s exercise of constitutional
rights. See Perry v. Sinderman, 408 U.S. 593, 597 (1972). Retaliation is actionable “only if the
retaliatory act ‘is capable of deterring a person of ordinary firmness from further exercising his
constitutional rights.’” Bibbs v. Early, 541 F.3d 267, 270 (5th Cir. 2008), quoting Morris v.
Powell, 449 F.3d 682, 684 (5th Cir. 2006) . “A prison official may not retaliate against or harass
an inmate for exercising the right of access to the courts, or for complaining to a supervisor about
a guard’s misconduct.” Woods v. Smith, 60 F.3d 1161, 1164 (5th Cir. 1995). However, the Fifth
Circuit has emphasized that “prisoners’ claims of retaliation are regarded with skepticism and are
carefully scrutinized by the courts.” Adeleke v. Fleckenstein, 385 Fed. Appx. 386, *1 (5th Cir.
Jul. 12, 2010) (unpublished), citing Wood, 60 F.3d at 1166.
The purpose of allowing retaliation claims under § 1983 is to ensure that prisoners are not
unduly discouraged from exercising their constitutional rights.

Morris, 449 F.3d at 686.

However, some acts, even though they may be motivated by retaliatory intent, are so de minimis
that they would not deter the ordinary person from further exercise of his rights. Id. Such acts
do not rise to the level of constitutional violations and cannot form the basis of a § 1983 claim.

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Id. For example, a job transfer from the commissary to the kitchen might be de minimis, while a
transfer to a more dangerous unit might constitute an adverse retaliatory act.10 Id. at 687.
To state a valid § 1983 claim for retaliation, “a prisoner must allege (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.” Jones v. Greninger, 188
F.3d 322, 324-25 (5th Cir. 1999) (citing

McDonald v. Stewart, 132 F.3d 225, 231 (5th Cir.

1998). An inmate must allege more than his personal belief that he is the victim of retaliation.
Johnson v. Rodriguez, 110 F.3d 299, 310 (5th Cir. 1997) (citation omitted). Mere conclusory
allegations of retaliation will not withstand a summary judgment challenge. Woods, 60 F.3d at
1166. And see Garner v. Moore, ____ Fed. Appx. ____, 2013 WL 3726801 (5th Cir. Jul 17,
2013) .
Law librarian Candace Moore.
In February 2011, plaintiff sent numerous I-60 requests to Ms. Moore to discover the
names of the officers working on December 21, 2010; however, Ms. Moore ignored his requests
and did not provide him with the information. On March 18, 2011, plaintiff filed a grievance
complaining about Ms. Moore’s failure to answer his I-60s. (DSJ Ex. C at 27-28). Plaintiff
10

The Fifth Circuit has not specifically defined “the quantum of injury necessary to constitute an
‘adverse act’ for purposes of a retaliation claim. Hart v. Harrison, 34 F.3d 762, 764 (5th Cir. 2003).
However, the frequency and length of the retaliatory action are to be considered. Id. For example, in
Hart, the Fifth Circuit found that 27 days of cell restriction and loss of commissary privileges was not de
minimis. Id. at 765. However, in Morris, the Fifth Circuit concluded that a 10-day loss of commissary
privileges as punishment for a disciplinary offense was no more than a de minimis adverse act. Morris,
449 F.3d at 686. The Fifth Circuit has found that the denial of two meals over an eight-month period is
de minimis and cannot support a claim of retaliation. Romero v. Lann, 305 Fed. Appx. 242, *1 (Dec. 28
2008) (unpublished). Similarly, a single incident in which a prisoner is not allowed to eat is de minimis.
Dickerson v. Johnson, 234 F.3d 29 (5th Cir. 2000). Denial of recreation on one occasion is a de minimis
injury and does not constitute an “adverse retaliatory act,” for purposes of stating a retaliation claim. Cf.
Ford v. Jones, 2006 WL 3488954 (S.D. Tex. 2006) (unpublished), citing Morris, 449 F.3d at 686.

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claims that, in retaliation for his filing this grievance and the earlier I-60s, Ms. Moore then
refused to give him indigent supplies or to process his mail.
In response to plaintiff’s allegations. Ms. Moore testifies:
Offender Justice claims he was denied indigent legal
supplies. A review of the records shows that Offender Justice was
issued the full amount of the personal and legal indigent supplies
to which he was entitled. Offenders must show that they have
exhausted previously issued supplies by actually using the
supplies. This requirement prevents indigent offenders from using
supplies as currency and trading supplies as contraband. Some
indigent supplies, like pens, require that the offender trade-in the
old for a new one. Because TDCJ has limited resources and
supplies to give out under the indigent supply program, failure to
adhere to these rules will result in the denial of an offender’s
request for indigent supplies.

The records indicate that Offender Justice requested
indigent supplies approximately every other day and his requests
were fulfilled as the rules allowed. I did not deny Offender Justice
indigent supplies at any time for any reason other than his failure
to follow the TDCJ policy requirements for requesting indigent
supplies.

(DSJ Ex. G, Moore Aff’t at ¶¶ 4-5).
An essential element of a retaliation claim is the ability to show causation, i.e., that the
complained of conduct would not have occurred absent the retaliatory motive. Johnson v.
Rodriguez, 110 F.3d 299, 310 (5th Cir. 1997).

Here, plaintiff fails to offer any facts to

demonstrate that, but for filing a grievance against Ms. Moore, he would have received
additional indigent supplies as requested or that his mail would have been handled in a different
manner. To the contrary, the undisputed evidence demonstrates that plaintiff’s complaints about
indigent supplies were investigated and it was determined that he did receive his supplies when

15 / 18

he followed procedure. (See DSJ Ex. C at 31-42, investigating Grievance No. 2011121224; Ex.
C at 20-27, investigating Grievance No. 2011192187; and Ex. C at 7-15, investigating grievance
No. 2011208834). Although he complained in his August 2, 2011, grievance that he was denied
the right to send personal mail on three dates, he did not pursue this claim in his Step 2 appeal,
thus abandoning it. (See DSJ Ex. C at 3-4). Plaintiff’s allegations of retaliatory animus against
Ms. Moore are wholly conclusional, amounting to no more than his personal belief that he was
retaliated against, and as such, are insufficient. Johnson, 110 F.3d at 310. According, Ms.
Moore is entitled to summary judgment in her favor on plaintiff’s claim of retaliation, and this
claim is dismissed with prejudice.
Captain Salazar.
Following the altercation with Offender Aaron on December 21, 2010, plaintiff was
placed in administrative segregation, and once there, he did not receive pork-free meal trays.
Plaintiff wrote I-60s to the kitchen supervisor, Captain Salazar, but the problem was not
remedied until June 2011, during which time, plaintiff lost 15 pounds. Plaintiff claims that
Captain Salazar purposely delayed his receipt of the proper diet in retaliation for plaintiff filing
grievances in an attempt to receive the correct diet.
Captain Salazar is the McConnell Unit kitchen supervisor and is in charge of food
services. (DSJ Ex. F, Salazar Aff’t at ¶ 5). In general population, there is no list of offenders
that eat a pork-free diet; instead, offenders select a pork-free tray when in line for chow. Id. In
contrast, prisoners housed in administrative segregation take their meals in their cells. Id. at ¶ 4.
Pursuant to TDCJ-CID Food Services Manual, section 13.07, Menu Selection, a prisoner housed
in administrative segregation who desires a pork-free diet must submit his request to the highest
ranking official of administrative segregation, which at the time of plaintiff’s request was a

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Major. Id. at ¶ 4. It was then the Major’s responsibility to approve or deny such requests, and to
compile a list of prisoners requesting pork-free trays to be delivered to administrative
segregation. Id. As such, Captain Salazar had ”… no personal knowledge of Offender Justice’s
request for a pork-free diet while in administrative segregation, nor would any such requests be
directed to my office.” Id.
In failing to file a response to the summary judgment motion, plaintiff offers no evidence
to rebut Captain Salazar’s testimony that he never received plaintiff’s requests to be placed on a
pork-free diet and, even if he had, he had no authority to do so as this was the responsibility of
the administrative segregation Major. Thus, to the extent plaintiff claims that Captain Salazar
purposely delayed his receiving a pork-free diet in retaliation for plaintiff filing I-60’s about
being not receiving a pork-free diet, he fails to establish that, but for a retaliatory motive, the
complained of action would not have occurred. To the contrary, as explained by Captain
Salazar, plaintiff was required to request a pork-free diet upon his transfer to administrative
segregation, and it was the responsibility of the administrative segregation Major to approve (or
deny) the request so that plaintiff would receive the proper food tray. (DSJ Ex. F, Salazar Aff’t
at ¶5). Plaintiff fails to state a cognizable claim of retaliation against Captain Salazar, and
accordingly, this claim is dismissed with prejudice.

VI.

Conclusion.
There is no genuine issue of a material fact that plaintiff failed to exhaust his

administrative remedies as required by 42 U.S.C. § 1997e(a) as to his failure to protect claims
against defendants Officer Sheelar, Officer Brown and Officer Cantu, and therefore, defendants’
motion for summary judgment to dismiss those claims for failure to exhaust (D.E. 71) is

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GRANTED. Plaintiff’s claims against Officer Sheelar, Officer Brown and Officer Cantu are
dismissed with prejudice for failure to exhaust administrative remedies. Moreover, the summary
judgment evidence refutes plaintiff’s allegations that Captain Salazar or Librarian Moore acted in
retaliation for plaintiff filing grievances, and summary judgment is granted in their favor, and
plaintiff’s claims against them are dismissed with prejudice.

ORDERED this 8th day of August, 2013.

___________________________________
Jason B. Libby
United States Magistrate Judge

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