The opinion
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 12, 2008
No. 06-11245
Summary Calendar Charles R. Fulbruge III
Clerk
CLARENCE WILSON
Plaintiff-Appellant
v.
CORRECTIONAL OFFICER ROCHELLE GALLARDO
Defendant-Appellee
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 1:04-CV-160
Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Clarence Wilson, Texas prisoner # 691352, appeals the dismissal on
summary judgment of his pro se, in forma pauperis, 42 U.S.C. § 1983 civil rights
complaint against Rochelle Gallardo, a Texas Department of Criminal Justice
corrections officer. In his complaint, Wilson alleged that, in retaliation for
threatening to exercise his First Amendment right to complain about Officer
Gallardo’s use of profane and abusive language, Officer Gallardo filed a false
prison disciplinary action that accused him of assaulting her with a chute door.
*
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should not be published and is not precedent except under the limited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.
No. 06-11245
Officer Gallardo argued that she was entitled to qualified immunity and moved
for summary judgment. The parties agreed to proceed before a magistrate judge
(MJ). The MJ granted Officer Gallardo’s motion for summary judgment, finding
that Officer Gallardo was entitled to qualified immunity.
On appeal, Wilson argues that a genuine issue of material fact exists as
to whether Officer Gallardo was injured in the alleged assault and whether his
contact with Officer Gallardo was intentional. He contends that Officer Gallardo
would not have filed a disciplinary charge against him if he had not threatened
to file a formal grievance against her.
This court reviews the grant of summary judgment de novo. Fraire v. City
of Arlington, 957 F.2d 1268, 1273 (5th Cir. 1992). Summary judgment is proper
“if the pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(c). If the movant meets the initial burden of showing
that there is no genuine issue, the burden shifts to the non-movant to set forth
specific facts showing the existence of a genuine issue for trial. Rule 56(e).
Public officials are entitled to qualified immunity from suit under § 1983
unless the plaintiff makes specific allegations that the officials violated clearly
established law. Morin v. Caire, 77 F.3d 116, 120 (5th Cir. 1996). This court
uses a two-part test to determine if qualified immunity applies. “First, [the
court] determine[s] if the plaintiff has stated a violation of a clearly established
constitutional right. If so, [this court] next examine[s] the reasonableness of the
defendant’s conduct.” Id. In order to demonstrate retaliation in violation of a
constitutional right, a prisoner must show (1) the existence of a constitutional
right, (2) the defendant’s intent to retaliate against the prisoner for exercising
that right, (3) a retaliatory adverse act, and (4) causation. McDonald v. Steward,
132 F.3d 225, 231 (5th Cir. 1998). “Causation requires a showing that but for
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No. 06-11245
the retaliatory motive the complained of incident . . . would not have occurred.”
Id. (internal quotation marks and citations omitted).
The only issue on appeal is whether a genuine issue of material fact exists
as to causation. Wilson’s allegation that Officer Gallardo retaliated against him
based on his threat to file a grievance against her are conclusionary as he
adduces no evidence which demonstrates that his threat, rather than his conduct
of hitting Officer Gallardo with the chute door, motivated her to file a
disciplinary action against him. Absent a showing of causation, Wilson has
failed to establish that Officer Gallardo violated his constitutional rights. See
id.; Morin, 77 F.3d at 120. He has concomitantly failed to establish error in the
MJ’s finding that Officer Gallardo was entitled to qualified immunity. See
Morin, 77 F.3d at 120. In short, the MJ did not err in granting Officer Gallardo’s
motion for summary judgment. Accordingly, the judgment is AFFIRMED.
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