Opinion

Lempar v. Livingston

Court
Court of Appeals for the Fifth Circuit
Filed
Feb 4, 2021
Status
Unpublished
Nature of suit
Prisoner w/ Counsel
Cited by
0 cases
Authority
More cited than 14.9%

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opinion should not be published and is not precedent except under the limited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.

Case: 19-20243 Document: 00515733985 Page: 2 Date Filed: 02/04/2021

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.

2

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No. 19-20243

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

3

Case: 19-20243 Document: 00515733985 Page: 4 Date Filed: 02/04/2021

No. 19-20243

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.

4

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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