The opinion
Case: 11-40337 Document: 00511735773 Page: 1 Date Filed: 01/25/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 25, 2012
No. 11-40337
Summary Calendar Lyle W. Cayce
Clerk
TARRANCE DARON WHITLOCK,
Plaintiff-Appellant
v.
CAPTAIN DAVID HUDSON, Warden, Telford Unit; SERGEANT STEPHEN G.
ROCKWELL, Compliance and Safety Officer; A. JENKENS, Compliance and
Safety Officer; R. VANN, Compliance and Safety Officer; C. ARMSTRONG,
Maintenance Supervisor; RICK THALER,
Defendants-Appellees
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 5:10-CV-137
Before HIGGINBOTHAM, DAVIS and ELROD, Circuit Judges.
PER CURIAM:*
Tarrance Daron Whitlock, Texas prisoner # 930799, appeals the district
court’s grant of summary judgment and dismissal of his pro se, in forma
pauperis, 42 U.S.C. § 1983 complaint. Whitlock has also filed a motion with this
court for the appointment of counsel. In general, Whitlock claims that his
constitutional right to be free from cruel and unusual punishment has been
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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No. 11-40337
violated because the area where he is imprisoned has been infested with rodents
and insects and that his toilet has had defective plumbing.
This court reviews a grant of summary judgment de novo. Dillon v.
Rogers, 596 F.3d 260, 266 (5th Cir. 2010). Summary judgment is proper “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). This
court “construe[s] all facts and inferences in the light most favorable to the
nonmoving party when reviewing grants of motions for summary judgment.”
Dillon, 596 F.3d at 266 (internal quotation marks and citation omitted). A
factual dispute will preclude a grant of summary judgment 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, 255-56 (1986). However, the
movant need not negate the elements of the nonmovant’s case. Little v. Liquid
Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc). If the movant meets his
burden of demonstrating the absence of a genuine issue of material fact, the
nonmovant “must go beyond the pleadings and designate specific facts showing
that there is a genuine issue for trial.” Id. The nonmovant may not satisfy this
burden by relying on conclusional allegations and unsubstantiated assertions.
Carnaby v. City of Houston, 636 F.3d 183, 187 (5th Cir. 2011).
To establish an Eighth Amendment violation for conditions of confinement,
a prisoner must show objectively that the alleged violation was sufficiently
serious that it deprived him of the minimal level of life’s necessities and
subjectively that prison officials acted with deliberate indifference to his health
or safety. Farmer v. Brennan, 511 U.S. 825, 834-35 (1994); Davis v. Scott, 157
F.3d 1003, 1006 (5th Cir. 1998). “[T]he deprivation alleged must be, objectively,
sufficiently serious; a prison official’s act or omission must result in the denial
of the minimal civilized measures of life’s necessities.” Palmer v. Johnson, 193
F.3d 346, 352 (5th Cir. 1999) (internal quotation marks and citation omitted).
To establish deliberate indifference, the prisoner must show that the defendant
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was aware of facts from which an inference of an excessive risk to the prisoner’s
health or safety could be drawn and that he actually drew an inference that such
potential for harm existed. Bradley v. Puckett, 157 F.3d 1022, 1025 (5th Cir.
1998).
First, Whitlock challenges the district court’s determination that the
defendants are entitled to Eleventh Amendment immunity, contending that the
Eleventh Amendment does not bar a suit for injunctive or declaratory relief. To
the extent that Whitlock sued the TDCJ officials in their official capacity for
monetary damages, the district court correctly determined that the Eleventh
Amendment barred such claims. See Oliver v. Scott, 276 F.3d 736, 742 (5th Cir.
2002). However, sovereign immunity is subject to an established exception
through which a federal court, consistent with the Eleventh Amendment, may
enjoin state officials to conform their future conduct to the requirements of
federal law. See Mayfield v. Texas Dept. of Criminal Justice, 529 F.3d 559, 604
(5th Cir. 2008). Nonetheless, Whitlock’s argument regarding this issue consists
solely of conclusional and unsubstantiated assertions that he is entitled to
injunctive or declaratory relief. Such assertions are insufficient to demonstrate
error in the district court’s grant of summary judgment regarding Eleventh
Amendment immunity. See Carnaby, 636 F.3d at 187; Little, 37 F.3d at 1075.
Second, Whitlock argues that the defendants are not entitled to qualified
immunity, yet he fails to address with any specificity the findings that were
made by the district court within the context of the analysis set forth in Saucier
v. Katz, 533 U.S. 194 (2001), overruled in part by Pearson v. Callahan, 555 U.S.
223 (2009). The general, unsupported argument that Whitlock has made in
connection with issue two is insufficient to demonstrate error in the district
court’s grant of summary judgment. See Carnaby, 636 F.3d at 187; Little, 37
F.3d at 1075.
Third, Whitlock challenges the district court’s determination that he failed
to show that defendants Thaler, Hudson, or Vann had personally engaged in
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misconduct. In Whitlock’s case, because the defendants asserted qualified
immunity, Whitlock bore the burden of overcoming that defense. See Gates v.
Texas Dep’t of Protective and Regulatory Servs., 537 F.3d 404, 419 (5th Cir.
2008). Whitlock’s general allegations are insufficient to defeat the defense of
qualified immunity, see Ontiveros, 564 F.3d at 382, especially in the context of
Whitlock’s claim that the defendants violated the Eighth Amendment’s
prohibition against cruel and unusual punishment, which requires that the
officials acted with deliberate indifference to his needs. See Farmer, 511 U.S. at
834-35; Bradley, 157 F.3d at 1025.
Fourth, Whitlock challenges the district court’s determination that the
defendants were not deliberately indifferent to his complaints about pests. The
district court’s specific findings on this issue include the determinations that the
defendants attempted to appease Whitlock’s concerns, that Rockwell’s responses
to Whitlock’s grievances revealed that the issues were not overlooked, and that
efforts were made to appease Whitlock. The documentary evidence submitted
by the defendants, combined with Rockwell’s affidavit, establish that Whitlock’s
concerns were not overlooked by prison staff. The evidence therefore supports
the district court’s determination that the defendants did not act with deliberate
indifference to Whitlock’s concerns. Fifth, Whitlock challenges the district
court’s conclusion that Armstrong did not act with deliberate indifference to
Whitlock’s complaints regarding plumbing problems. The record, which includes
Armstrong’s affidavit and documents regarding Whitlock’s grievance of this
issue, supports the district court’s determination, that Armstrong was not
deliberately indifferent to Whitlock’s needs. In sum, Whitlock’s general
allegations regarding issues four and five are insufficient to defeat the defense
of qualified immunity. See Ontiveros, 564 F.3d at 382; Little, 37 F.3d at 1075.
The foregoing analysis indicates that Whitlock’s arguments lack merit, the
case is not particularly complex, and Whitlock has not shown himself incapable
of presenting his appeal. The appointment of counsel therefore is not warranted.
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See Cooper v. Sheriff, Lubbock County, Tex., 929 F.2d 1078, 1084 (5th Cir. 1991).
Finally, this court has considered the request by the appellees that the court
impose a 28 U.S.C. § 1915(g) strike. A § 1915(g) strike is not warranted in this
proceeding.
For the foregoing reasons, the judgment of the district court is
AFFIRMED. Whitlock’s motion for the appointment of counsel is DENIED.
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