The opinion
Case: 19-20243 Document: 00515733985 Page: 1 Date Filed: 02/04/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
No. 19-20243 February 4, 2021
Summary Calendar Lyle W. Cayce
Clerk
Donald Lempar,
Plaintiff—Appellant,
versus
Brad Livingston; Myra Walker; Guy Smith; Jamie
Williams; Ernestine Juyle,
Defendants—Appellees.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:13-CV-706
Before Clement, Higginson, and Engelhardt, Circuit Judges.
Per Curiam:*
Donald Lempar, former Texas prisoner # 1284244, appeals the
summary judgment dismissal of his 42 U.S.C. § 1983 complaint alleging
retaliation by various prison officials. He contends that in response to his
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
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No. 19-20243
filing of grievances, medical staff refused to update forms to show that he
should not be assigned to work, advised other staff members not to medically
unassign him, orchestrated his transfer to more dangerous prison units where
he faced unhealthy conditions, used security staff to force him to comply with
attempts to give him substandard care, and deprived him of pain medications
after two hospital visits. In addition, Lempar maintains that some of the
defendants denied him relief on his grievances or refused to consider
grievances that he filed despite the clear evidence of retaliation alleged
therein. We affirm.
We review the grant of summary judgment de novo, applying the same
standards as the district court. Austin v. Kroger Tex., L.P., 864 F.3d 326, 328
(5th Cir. 2017). “The court shall grant summary judgment if the movant
shows that 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). All facts
and reasonable inferences must be construed in the light most favorable to
the nonmovant, and the court must not weigh evidence or make credibility
calls. Deville v. Marcantel, 567 F.3d 156, 163-64 (5th Cir. 2009). However,
the nonmovant cannot satisfy his burden with “conclusory allegations,”
“unsubstantiated assertions,” or “only a scintilla of evidence.” Duffie v.
United States, 600 F.3d 362, 371 (5th Cir. 2010) (internal quotation marks and
citation omitted).
“To state a valid claim for retaliation under section 1983, 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). Retaliation claims are “regarded with skepticism,”
and a prisoner raising such a claim “must allege the violation of a specific
constitutional right and be prepared to establish that but for the retaliatory
motive the complained of incident . . . would not have occurred.” Woods v.
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Smith, 60 F.3d 1161, 1166 (5th Cir. 1995). “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.” Id. (internal
quotation marks and citation omitted).
Lempar’s arguments are without merit. Our exhaustive review of the
evidence presented in this case does not reflect a genuine dispute as to any
material fact regarding whether the defendants intended to retaliate against
Lempar based on his filing of prison grievances or whether the complained-
of actions would not have occurred but for a retaliatory motive. See Jones,
188 F.3d at 324-25; Woods, 60 F.3d at 1166. With respect to some of the
allegations of harm, he has not pointed to evidence showing that the named
defendants were personally involved in the alleged adverse actions or that
they directed those actions. See Jones v. Lowndes Cty., Miss., 678 F.3d 344,
349 (5th Cir. 2012). To the extent that Lempar contends that “systemic
failures” in the prison system should be attributable to the former director of
the Texas Department of Criminal Justice, he comes forward with no
evidence showing that this defendant personally participated in the actions
that caused him harm and he has not identified an unconstitutional policy
giving rise to a constitutional injury. See Porter v. Epps, 659 F.3d 440, 446
(5th Cir. 2011). There is no disputed fact question that, when resolved in
Lempar’s favor, rises to the level of retaliation. We therefore uphold the
district court’s grant of summary judgment in favor of the defendants. See
Austin, 864 F.3d at 328; Duffie, 600 F.3d at 371; FED. R. CIV. P. 56(a).
Lempar also contends that the district court erred in denying his
requests for discovery prior to ruling on the defendants’ summary judgment
motion. The defendants’ motion asserted that they were entitled to qualified
immunity, and the district court ultimately agreed. Although Federal Rule
of Civil Procedure 26(b)(1) broadly permits discovery, this court has held
that discovery should not be permitted when a qualified immunity defense is
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pending. See Backe v. LeBlanc, 691 F.3d 645, 648 (5th Cir. 2012).
Accordingly, the district court did not abuse its discretion in denying
Lempar’s requests for discovery. See Crosby v. Louisiana Health Serv. and
Indem. Co., 647 F.3d 258, 261 (5th Cir. 2011).
AFFIRMED.
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