“Personal involvement is an essential element of a civil rights cause of action.”
How later courts described this case
- “Personal involvement is an essential element of a civil rights cause of action.”
Written by the judges who cited it.
The opinion
Case: 21-40024 Document: 00516419168 Page: 1 Date Filed: 08/04/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
August 4, 2022
No. 21-40024
Summary Calendar Lyle W. Cayce
Clerk
James E. Wilson,
Plaintiff—Appellant,
versus
Andrew H. Nino; Benjamin P. Brako; John R. Delapp, Jr.;
Daniel P. Fernandez,
Defendants—Appellees.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:19-CV-394
Before Higginbotham, Higginson, and Duncan, Circuit Judges.
Per Curiam:*
James E. Wilson, Texas prisoner # 1842956, has appealed the district
court’s order denying his motion for summary judgment; granting the
motion for summary judgment of defendants Sergeant Andrew H. Nino;
*
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opinion should not be published and is not precedent except under the limited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: 21-40024 Document: 00516419168 Page: 2 Date Filed: 08/04/2022
No. 21-40024
Sergeant Benjamin P. Brako; Major John R. DeLapp, Jr.; and Assistant
Warden Daniel P. Fernandez, all employees at the McConnell Unit of the
Texas Department of Criminal Justice, Institutional Division; and denying
his request for injunctive relief as moot.
In his complaint, Wilson alleged that Nino, Brako, and DeLapp
retaliated against him for complaining through the grievance process that he
was sexually assaulted by another inmate and alleged that Fernandez had
failed to intervene in the wrongful acts of the other defendants. He
complained that the defendants extended his stay in prehearing/security
detention, wrongfully charged him with disciplinary violations, removed him
from safekeeping custody, and returned him to the general population.
We review de novo a grant of summary judgment, applying the same
standard as the district court. Nickell v. Beau View of Biloxi, LLC, 636 F.3d
752, 754 (5th Cir. 2011). “The [district] 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). We “draw all reasonable inferences in favor of the nonmoving
party.” Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir.
2007) (internal quotation marks and citations omitted). Where, as here, a
qualified immunity defense is pleaded, the burden shifts to the plaintiff to
rebut it by establishing a genuine issue as to whether the defendants’
allegedly wrongful conduct violated a clearly established constitutional right.
Brown v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010).
“To prevail on a claim of retaliation, a prisoner must establish (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.” McDonald v. Steward, 132 F.3d 225, 231 (5th Cir. 1998). The
prisoner must show that, but for the retaliatory motive, the incident
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No. 21-40024
complained of would not have occurred. Id. A claim of retaliation must be
supported by direct evidence or a chronology of events from which retaliation
can be inferred. Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995).
Wilson’s arguments are conclusory and are not supported by citations
to the record. See Fed. R. App. P. 28(a)(8)(A); 5th Cir. R. 28.2.2
(requiring record citations). Several of Wilson’s arguments—including that
he was defamed, that he was harassed and assaulted after his complaint was
dismissed, and that his right to due process was violated during disciplinary
proceedings—were raised for the first time on appeal. Therefore, we do not
consider them. See Leverette v. Louisville Ladder Co., 183 F.3d 339, 342 (5th
Cir. 1999). Although the brief is not in compliance with the rules, pro se
briefs are liberally construed, and Wilson’s arguments have been expressed
with sufficient particularity, although they are without merit. See Yohey v.
Collins, 985 F.2d 222, 225 (5th Cir. 1993).
The summary judgment evidence does not show that there is a
genuine fact issue as to whether Brako, DeLapp, and Nino intended to
retaliate against Wilson for exercising a constitutional right. See McDonald,
132 F.3d at 231. Nor is there a genuine fact issue as to causation. Id. Wilson
has also not shown that there is a genuine issue of fact as to Fernandez’s
personal involvement in any constitutional violation. See Thompson v. Steele,
709 F.2d 381, 382 (5th Cir. 1983) (“Personal involvement is an essential
element of a civil rights cause of action.”). Because Wilson has not shown
that the defendants violated his constitutional rights, he has not met his
burden of overcoming their qualified immunity defense. See Brown, 623 F.3d
at 253. Wilson’s motion for appointment of counsel is DENIED, and the
district court’s order and judgment are AFFIRMED.
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