Walzier v. McMullen

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

June 17, 2009

No. 08-20195

Summary Calendar Charles R. Fulbruge III

Clerk

VANCE WALZIER

Plaintiff-Appellant

v.

MCMULLEN, Lieutenant; GARCIA; Captain; HERNANDEZ, CO IV; RAMIREZ,

CO IV; MCBRIDE, CO IV; CORRETHERS, CO IV; GLAZE, CO IV; FLORES, CO

IV

Defendants-Appellees

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:06-CV-2361

Before SMITH, STEWART and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Vance Walzier, Texas prisoner # 709706 appeals the dismissal of his pro

se, in forma pauperis (IFP) civil rights complaint against officials at the Texas

Department of Criminal Justice. Walzier’s motion for oral argument is denied.

The district court did not abuse its discretion when it dismissed as frivolous

under 28 U.S.C. § 1915(e)(2)(B) Walzier’s medical care claims because they

amounted to claims of negligence. See Harper v. Showers, 174 F.3d 716, 718 (5th

*

Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.

No. 08-20195

Cir. 1999); Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991). Nor did the

district court abuse its discretion in dismissing as frivolous Walzier’s claim that

Defendants Hernandez, Ramirez, McBride, Correthers, Glaze, and Flores

retaliated against him for filing grievances against other officers because

Walzier failed to point to a specific constitutional right that these defendants

violated. See Jones v. Greninger, 188 F.3d 322, 325 (5th Cir. 1999). Because

Walzier does not brief the district court’s dismissal of his claim against Captain

Garcia, he has abandoned any appellate argument regarding the same. See

Hughes v. Johnson, 191 F. 3d 607, 613 (5th Cir. 1993).

Walzier argues that the district court erred when it granted summary

judgment for Lieutenant McMullen. We review the grant of a motion for

summary judgment de novo. Hinojosa v. Butler, 547 F.3d 285, 295 (5th Cir.

2008). We will affirm a summary judgment if “‘there is no genuine issue as to

any material fact’ and the moving party is ‘entitled to judgment as a matter of

law.’” Id. (quoting F ED. R. C IV. P. 56(c)). We view the evidence and the

inferences from the record in the light most favorable to the nonmovant. Id.

(citation and internal quotation marks omitted).

“Qualified immunity protects government officials ‘from liability for civil

damages insofar as their conduct does not violate clearly established statutory

or constitutional rights of which a reasonable person would have known.’” Lytle

v. Bexar County, Tex., 560 F.3d 404, 409 (5th Cir. 2009) (quoting Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982)). Whether a government official is entitled

to qualified immunity for an alleged constitutional violation is determined by the

two-step analysis of Saucier v. Katz, 533 U.S. 194 (2001), overruled in part by

Pearson v. Callahan, 129 S. Ct. 808 (2009). Lytle, 560 F.3d at 409.

The threshold constitutional violation question is “whether, taking the

facts in the light most favorable to the plaintiff, the officer’s alleged conduct

violated a constitutional right.” Id. at 410 (citing Saucier, 533 U.S. at 201). If

the court determines that there was a constitutional violation, the court moves

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No. 08-20195

to the second step, which involves “determining whether the law was sufficiently

clear that a reasonable officer would have known that his conduct violated the

constitution. Id. Stated another way, the court asks “whether the law lacked

such clarity that it would be reasonable for an officer to erroneously believe that

his conduct was reasonable.” Id.

The summary judgment evidence establishes that Walzier does not have

Hepatitis C or AIDS, diseases he alleges were the result of contaminated food

served to him after Lieutenant McMullen labeled him a snitch. Walzier fails to

show that Lieutenant McMullen violated the Eighth Amendment in failing to

protect Walzier. The summary judgment evidence reflects that Walzier

instigated altercations with other inmates and that he has no health problems

related to the food he was served. Absent a showing that other inmates harmed

Walzier, there is no factual basis for a failure to protect claim. See Farmer v.

Brennan, 511 U.S. 825, 833 (1994); Adames v. Perez, 331 F.3d 508, 512 (5th Cir.

2003).

Nor can Walzier show a constitutional violation with respect to his claim

that McMullen retaliated against him. Given that the summary judgment

evidence establishes a clean bill of health for Walzier, he fails to show that he

suffered more than de minimis retaliation. See Morris v. Powell, 449 F.3d 682,

684 (5th Cir. 2008). Thus, the district court did not err when it granted

summary judgment for Lieutenant McMullen. Additionally, because Walzier

cannot show the denial of a constitutional right, his claim for nominal damages

fails. See Mayfield v. Texas Dept. of Criminal Justice, 529 F.3d 599, 606 (5th Cir.

2008) (noting that a prisoner can, absent a showing of physical injury, pursue

punitive or nominal damages based upon a violation of his constitutional rights).

This court need not address Walzier’s claim that his due process rights

were violated because of his status as a writ writer because he raises it for the

first time on appeal. See Stewart Glass & Mirror, Inc. v. U.S. Auto Glass

Discount Centers, Inc., 200 F.3d 307, 316-17 (5th Cir. 2000). Walzier’s argument

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No. 08-20195

that the district court could not order him to supply more specific facts to

support his claims after Lieutenant McMullen alleged qualified immunity is

unavailing. See Anderson v. Pasadena Indep. Sch. Dist., 184 F.3d 439, 443 (5th

Cir. 1999). Nor was Walzier entitled to discovery on McMullen’s qualified

immunity defense. See Harlow v. Fitzgerald, 457 U.S. 800, 817-18 (1982);

Jacquez v. Procunier, 801 F.2d 789, 791 (5th Cir. 1986).

Walzier argues that the district court erred when it dismissed his claims

that the defendants conspired to deprive him of his Eighth and Fourteenth

Amendment rights. Walzier’s district court filings arguably alleged a claim that

the defendants conspired to serve him tainted food and ignored his symptoms

because he had filed grievances. The district court, however, did not identify a

conspiracy claim. Even if the district court had done so, Walzier was not entitled

to § 1983 relief for conspiracy. To establish a conspiracy claim under § 1983,

Walzier had to show an actual violation of § 1983 and the defendants’ agreement

to commit an illegal act. See Hale v. Townley, 45 F.3d 914, 920 (5th Cir. 1995);

Arsenaux v. Roberts, 726 F.2d 1022, 1024 (5th Cir. 1982). As the preceding

discussion indicates, Walzier’s allegations of a constitutional violation were

either frivolous or subject to summary judgment.

The district court did not abuse its discretion when it denied Walzier’s

motion to file a second supplemental complaint. See Burns v. Exxon Corp., 158

F.3d 336, 343 (5th Cir. 1998). Walzier sought to add additional claims and

defendants when he had already been granted ample time and the means to do

so and he appeared to be abusing the judicial process. See Boudwin v. Graystone

Ins. Co., 756 F.2d 399, 401 (5th Cir. 1985).

The judgment of the district court is affirmed. This court’s affirmance of

the district court’s dismissal of certain of Walzier’s claims as frivolous counts as

a strike for purposes of 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103

F.3d 383, 387 (5th Cir. 1996). Walzier is warned that if he accumulates three

strikes, he may not proceed IFP in any civil action or appeal filed while he is

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No. 08-20195

incarcerated or detained in any facility unless he is under imminent danger of

serious physical injury. See § 1915(g).

AFFIRMED; MOTION DENIED; SANCTION WARNING ISSUED.

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