           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                         December 15, 2009

                                       No. 08-50484                    Charles R. Fulbruge III
                                                                               Clerk

WILFORD HARALSON

                                                   Plaintiff–Appellant
v.

GILBERT CAMPUZANO; WARDEN DAWN E GROUNDS; VALENCIA
POLLARD; EXIQUIO GARZA; KENNETH L DEAN; SUSAN SIMMS

                                                   Defendants–Appellees




                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 6:07-CV-00001


Before JONES, Chief Judge, and PRADO and HAYNES, Circuit Judges.
PER CURIAM:*
       Appellant Wilford Haralson appeals, pro se, the district court’s grant of
summary judgment in favor of Appellees Gilbert Campuzano, Dawn Grounds,
Valencia Pollard, Exquisio Garza, Kenneth Dean, and Susan Sims. Appellant
sued under the Americans with Disabilities Act (the “ADA”) and under 42 U.S.C.
§ 1983, alleging violation of his First, Eighth, and Fourteenth Amendment
rights. Appellant claims that Appellees violated his rights by detaining him in


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-50484

the infirmary unit, amounting to solitary confinement, and depriving him of
exercise and any kind of human interaction or entertainment, which caused him
physical and psychological damage. Because Appellant has not raised a genuine
issue of material fact on any of his claims, we affirm.
              I. FACTUAL AND PROCEDURAL BACKGROUND
      Appellant is an inmate in the Hughes Unit of the Texas Department of
Criminal Justice, Correctional Institutions Division (“TCDJ”). Appellant suffers
from respiratory papillomatosis with dysplasia. His disease causes recurring
cancerous growths on his vocal cords, which led to his admittance to the
infirmary wing of the Hughes Unit in June 2006.
      While in the infirmary wing, Appellant’s recreational privileges were
limited to watching two hours of television per week.      The prison allowed
Appellant fifteen to thirty minutes of walking in the hall of the infirmary wing
each day, but Appellant claims that the guard often forgot to let him out.
Appellant had access to the same reading material as the rest of the prison.
Appellant could not attend a college class in which he enrolled before being
admitted to the infirmary wing, and he was not given a refund of his $120
enrollment fee. Appellant filed numerous grievances during this time, seeking
more recreation time and outdoor recreation, but prison officials denied all
grievances.
      Appellant received Interferon and oxygen treatment while in the infirmary
wing. According to prison officials, oxygen tanks create security threats in the
general population, requiring Appellant to remain in the infirmary wing.
Appellant used a wheelchair on occasion during his stay in the infirmary. By
November, Appellant had stopped eating, did not get out of bed, and became


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dizzy when he stood. Dr. Roy Reid predicted that Appellant had less than six
months to live. Dr. Reid prescribed Prozac to treat depression, although he was
unsure whether cancer or depression had caused Appellant’s symptoms.
      By January 2007, Appellant’s muscles had atrophied from lack of exercise,
leading Dr. Reid to recommend moving Appellant from the infirmary wing so
that he could exercise and regain strength. Appellant’s rehabilitation ended and
on January 23, 2007 he was discharged from the infirmary wing after signing a
form approving the release.
      Appellant filed this suit on January 3, 2007, but Appellees were not served
until January 22, 2007.        Appellant included as defendants Appellees
Campuzano, the regional director of TDCJ; Grounds, warden of the Hughes
Unit; Pollard, practice manager of the infirmary wing; Garza and Dean,
assistant wardens of the Hughes Unit; and Sims, the principal of the Hughes
Unit school. Appellant alleged that Appellees discriminated against him on the
basis of his disability, in violation of the ADA, and that by confining him in the
infirmary wing for seven months, Appellees acted with deliberate indifference
to a substantial risk of serious harm in violation of the Eighth Amendment.
Appellant claimed that the lack of exercise and isolation caused his mental and
physical health to deteriorate and that he suffered from back pain, neck pain,
headaches, and joint pain. Appellant also alleged that Appellees violated his
First Amendment rights. Appellant alleged that he was coerced into approving
his release from the infirmary wing and that Appellees ordered his release in
retaliation for the grievances he had filed and this lawsuit. Appellant sought
damages and an injunction ordering that inmates in the infirmary unit be
provided the same amount of out-of-cell time and television privileges as other


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minimum custody inmates.
      Appellant later moved to amend his original complaint to include claims
against other parties. The district court ruled that granting the motion would
prejudice Appellees and that Appellant should instead bring the claims in a
separate action.    Appellant also moved to compel production of various
documents. The district court denied the motion after the Appellees fulfilled
their initial disclosure requirements under Federal Rule of Civil Procedure 26.
      The district court granted Appellees’ motion for summary judgment. The
district court found that Appellant did not have standing to seek injunctive relief
because he was no longer in the infirmary and he could show no concrete and
continuing injury. The district court found that Appellant’s claim that he may
be reassigned to the infirmary was too speculative. The court also found that
Appellant had made conclusory allegations against Appellees based on their
supervisory roles and that the individuals against whom he alleged personal
specific actions were not party to the suit. The court granted summary judgment
with respect to Appellant’s ADA claims because individual defendants cannot be
held personally liable for damages under the ADA. The court also held that
Appellant had not shown he was disabled as defined by the ADA, and that even
if he was disabled, the restrictions placed upon him were based not on his
disability, but on safety and security concerns.      The court also found that
Appellant had not shown that Appellees were aware of or ignored any risks to
Appellant’s health or safety, and therefore did not violate the Eighth
Amendment. Appellant moved for reconsideration of the court’s order under
Federal Rule of Civil Procedure 59(e) and for injunctive relief. The court denied
both motions. Appellant appeals the final judgment, the denial of injunctive


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relief, the denial of his motion for reconsideration, and the denial of his motion
to amend the complaint.
                               II. DISCUSSION
      We review the “grant of summary judgment de novo under the same
standard applied by the district court.” Floyd v. Amite County Sch. Dist., 581
F.3d 244, 247 (5th Cir. 2009) (citation omitted).        “Summary judgment is
appropriate when no genuine issue of material fact exists and the movant is
entitled to judgment as a matter of law. Fact questions are viewed in the light
most favorable to the nonmoving party and questions of law are reviewed de
novo.” Id. at 247–48.
A.    Prospective Relief
      Appellant seeks an injunction requiring Appellees and other Texas prison
officials to provide as much recreation time for inmates in the infirmary wing as
those in the general population. Appellant argues that he has standing to
pursue his claim for injunctive relief because, although he is no longer housed
in the infirmary, he still receives treatment there several times a week.
Additionally, because his disease is incurable, Appellant claims that he will
probably be admitted to the infirmary again. Appellant’s argument that he will
at some point be transferred back to the infirmary wing is essentially an
argument for application of the capable of repetition, yet evading review
exception to mootness.
      “In order for a plaintiff to have sufficient standing under Article III, that
plaintiff must show that: he has suffered or will suffer an injury, his injury is
traceable to the defendant’s conduct, and a favorable federal court decision will
likely redress the injury.” Samnorwood Indep. Sch. Dist. v. Tex. Educ. Ag., 533


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F.3d 258, 264–65 (citing Bennett v. Spear, 520 U.S. 154 (1997) (footnote
omitted)).     Under the capable of repetition, yet evading review exception,
Appellant must show “(1) the challenged action is in its duration too short to be
fully litigated prior to cessation or expiration; and (2) there is a reasonable
expectation that the same complaining party will be subject to the same action
again.” Fed. Elec. Comm’n v. Wisconsin Right to Life, Inc., 551 U.S. 449, 462
(2007) (internal quotation omitted).
       Appellant has not shown that any future stays in the infirmary would be
too short to be fully litigated and he has not shown a reasonable expectation that
he will be subjected to the same treatment again. The transfer rendered his
request for prospective relief moot. See Herman v. Holiday, 238 F.3d 660, 665
(5th Cir. 2001) (transfer from unit rendered prisoner’s claims for declaratory and
injunctive relief moot); see also Cooper v. Sheriff, Lubbock County, Tex., 929 F.2d
1078, 1084 (5th Cir. 1991) (same).              The possibility that Appellant will be
transferred back “is too speculative to warrant relief.” Herman, 238 F.3d at 665.
We find that Appellant lacks standing to seek injunctive relief.
B.     Eighth Amendment Claim
       Appellant claims that the denial of out-of-cell exercise and other
recreational activity for seven months while in the infirmary constituted cruel
and unusual punishment in violation of the Eighth Amendment.1 Specfically,
Appellant argues that Appellees acted with deliberate indifference to his health


       1
         Appellees do not dispute that Appellant has met the physical injury requirement for
suits by prisoners. See 42 U.S.C. § 1997e (e)(“No Federal civil action may be brought by a
prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury
suffered while in custody without a prior showing of physical injury.”). We assume, without
deciding, that Appellant’s showing of back pain, neck pain, headaches, and joint pain are
sufficient to meet this requirement.

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                                  No. 08-50484

and safety by confining him to the infirmary wing in what amounted to solitary
confinement, which caused harm to his mental and physical health. The district
court found that Appellant did not show that Appellees had any personal
involvement with his alleged constitutional deprivations, and that prison
officials confined him to the infirmary for medical treatment.
      “The Eighth Amendment . . . prohibits the infliction of ‘cruel and unusual
punishments’ on those convicted of crimes.” Wilson v. Seiter, 501 U.S. 294,
296–97 (1991) (citation omitted). However, the “Constitution does not mandate
comfortable prisons.” Rhodes v. Chapman, 452 U.S. 337, 347 (1981). To succeed
on his conditions-of-confinement claim, Appellant must show that (1) his
confinement, objectively speaking, resulted in a deprivation that was sufficiently
serious; and (2) that prison officials acted with deliberate indifference. Farmer
v. Brennan, 511 U.S. 825, 834 (1994). A “sufficiently serious deprivation” is the
denial of “the minimal civilized measure of life’s necessities.” Id. at 834. A
prison official acts with deliberate indifference if he “knows of and disregards an
excessive risk to inmate health or safety; the official must both be aware of facts
from which the inference could be drawn that a substantial risk of serious harm
exists, and he must also draw the inference.” Id. at 837.
      In Hernandez v. Velasquez, we upheld a grant of summary judgment in
favor of prison officials that had placed a prisoner in lockdown and denied all
outdoor and out-of-cell exercise privileges for thirteen months. 522 F.3d 556, 559
(5th Cir. 2008) (per curiam). Prison officials suspected he was a member of a
gang that was planning a war with a rival gang and confined him to a 5’ x 9’ cell
which he shared with another inmate. Id. We found that even if the prisoner
had created a fact issue as to “muscle atrophy, stiffness, loss of range of motion,


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and depression, there is nonetheless no indication these conditions posed a
substantial risk of serious harm.” Id. at 561.
      We conclude that Appellant’s situation is substantially similar to that of
the prisoner in Hernandez. There, the prisoner could not leave his cell for
thirteen months except for medical appointments, showers, and family visits.
Id. at 559. The prisoner in Hernandez had less freedom to move than Appellant
and was in lockdown for almost twice as long as Appellant was confined to the
infirmary. We must therefore conclude, as we did in Hernandez, that Appellant
has not raised a genuine issue as to whether he “suffered a ‘serious illness or
injury’ sufficient to constitute an Eighth Amendment violation.” See id. at 561
(quoting Estelle v. Gamble, 429 U.S. 97, 105 (1976)).
      In Hernandez, we also found that to the extent that the prisoner claimed
impairment of health, that he must “‘clearly evince’ the prisoner’s serious
medical need and the prison official’s deliberate indifference to it.” 522 F.3d at
561 (quoting Johnson v. Treen, 759 F.2d 1236, 1238 (5th Cir. 1985)). “Merely
negligent diagnosis or treatment of a medical condition does not state a claim
under the Eighth Amendment.” Id. (citing Estelle, 429 U.S. at 106 (1976)).
      Appellant does not raise a genuine issue of material fact as to Appellees’
“deliberate indifference” to his medical needs. The evidence shows that he
received regular treatment for his cancer and for depression. Dr. Reid regularly
examined Appellant as evidenced by his reports in the record. In fact, the
reports show that Dr. Reid attempted to improve Appellant’s condition. Viewed
in the light most favorable to Appellant, there is nothing in the record that
suggests that Appellees acted with deliberate indifference to his medical needs.




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C.    ADA Claims
      Title II of the ADA provides that “no qualified individual with a disability
shall, by reason of such disability, be excluded from participation in or be denied
the benefits of the services, programs, or activities of a public entity, or be
subjected to discrimination by any such entity.” 42 U.S.C. § 12132. A disability
is “a physical or mental impairment that substantially limits one or more major
life activities; . . . a record of such an impairment; or . . . being regarding as
having such an impairment.” 42 U.S.C. § 12102(1). In the ADA’s implementing
regulations, the Equal Employment Opportunity Commission provides a non-
exhaustive list of “major life activities,” including “caring for oneself, performing
manual tasks, walking, seeing, hearing, speaking, breathing, learning, and
working.” 29 C.F.R. § 1630.2(i). We have previously explained that major life
activities are “those activities that are of central importance to most people’s
everyday lives.” Jenkins v. Cleco Power, LLC, 487 F.3d 309, 315 (5th Cir. 2007).
      Appellant alleges that he had to use a wheelchair and had difficulty
breathing, which necessitated his use of an oxygen tank. Appellant’s discharge
summary indicates that the wheelchair was not “medically indicated or needed.”
Temporary conditions are generally not sufficient to rise to the level of disability
under the ADA. See Burch v. Coca-Cola Co., 119 F.3d 305, 316 (5th Cir. 1997)
(“Permanency, not frequency, is the touchstone of a substantially limiting
impairment.”); Rogers v. Int’l Marine Terminals, Inc., 87 F.3d 755, 759 (5th Cir.
1996) (finding that a temporary ankle affliction did not constitute a disability
even when it left some permanent impairment). There is no evidence that
Appellant’s impairments in walking and breathing were anything but temporary
and caused by his cancer and the treatment for the cancer he received while in


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the infirmary. See Ellison v. Software Spectrum, Inc., 85 F.3d 187, 191 (5th Cir.
1996) (finding that cancer and treatment for cancer did not substantially limit
the major life activity of working). Therefore, we hold that the district court
properly granted summary judgment on Appellant’s ADA claims.2
D.    Retaliation
      Appellant argues that the district court erred by granting summary
judgment on his retaliation claim.          Appellant claims that prison officials
discriminated against him by denying him oxygen and medication, refusing to
provide him with access to the shower, and coercing him into discharging himself
from the infirmary. The district court found that Appellees could not have
retaliated against Appellant because Appellees were only served with this
lawsuit after they decided to discharge Appellant from the infirmary. The
district court’s finding is irrelevant: Appellant complained to Appellees and filed
numerous grievances before he filed suit.           We nonetheless affirm because
Appellant has not shown that but for Appellees’s retaliatory motive, he would
not have been discharged.
      Prison officials may not retaliate against an inmate for exercising his right
of access to the courts or for complaining to a supervisor about guard
misconduct.     Woods v. Smith, 60 F.3d 1161, 1164 (5th Cir. 1995).                Filing
grievances in accordance with prison procedure and complaining about
treatment can be protected expression under the First Amendment. See Jackson
v. Cain, 864 F.2d 1235, 1248 (5th Cir. 1989).            “To state a valid claim for
retaliation under section 1983, a prisoner must allege (1) a specific constitutional


      2
        Although Appellant argues that he had a “record of such an impairment” and that he
was “regarded as having such impairment,” see 42 U.S.C. § 12102(1)(B)–(C), he provides no
support for this assertion and his argument is baseless in view of the record.

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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) (per curiam). The plaintiff must
establish that “but for the retaliatory motive the complained of incident . . .
would not have occurred.” Woods, 60 F.3d at 1166. “Mere conclusory allegations
of retaliation will not withstand a summary judgment challenge. 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 omitted).
      Appellant complains primarily of retaliatory actions allegedly taken by
Nurse Beaty, who is not a party to this lawsuit. These alleged actions do not
show direct evidence of retaliation by Appellees. Appellant’s retaliation claim
against Appellee Pollard, the practice manager of the infirmary wing, whom
Appellant alleges forced him to check himself out of the infirmary, also fails.
Appellant does not dispute that Dr. Reid recommended his discharge and that
days later he was discharged. Appellant does not call the legitimacy of Dr.
Reid’s recommendation into question. Therefore, Appellant cannot show that
“but for the retaliatory motive” he would not have been discharged from the
infirmary. See id.
E.    Denial of Appellant’s Motions
      1.    Motion for Leave to File a Supplemental Complaint
      Appellant claims that the district court erred by denying his motion for
leave to file a supplemental complaint. In that motion, Appellant sought to add
Nurse Beaty, physician’s assistant Randle, and correctional officers Brown and
Salazar as defendants. The district court denied the motion because it found


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that amending the complaint would prejudice Appellees by forcing them to
litigate the case from the beginning.
      The district court may permit a party to file a supplemental pleading
“setting out any transaction, occurrence, or event that happened after the date
of the pleading to be supplemented.” F ED. R. C IV. P. 15(d). We review the denial
of leave to file a supplemental complaint for abuse of discretion. Burns v. Exxon
Corp., 158 F.3d 336, 343 (5th Cir. 1998).
      We find that the district court did not abuse its discretion by denying leave
to supplement his complaint.       Although Appellant’s supplemental pleading
included actions which occurred after he filed his original complaint, they
involved claims against parties other than Appellees. The district court was
within its discretion when it found that granting leave to supplement would
delay the disposition of the claims against Appellees, thereby causing them
prejudice. See id. (“Rule 15(d) is clear that the court may permit a supplemental
pleading . . . .”) (emphasis in original).
      2.     Discovery Motions
      Appellant also argues that the district court erred by denying his motion
to compel production of documents.                Appellant complains specifically of
Appellees’ failure to turn over a videotape from March 19, 2007, which Appellant
claims would show his cell being shaken down by an infirmary wing officer, and
that it would show guards forcing Appellant to drag himself and his property
from the cell. Appellees made their initial disclosures under Federal Rule of
Civil Procedure 26 after Appellant brought the motion to compel, but responded
that the videotape was irrelevant because the court had denied Appellant leave
to supplement the complaint. The district court denied Appellant’s motion.


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      We review a district court’s denial of a motion to compel for abuse of
discretion. Burns, 158 F.3d at 343. The videotape would allegedly show events
that transpired on March 19, 2007, two months after Appellant filed his
complaint. The denial of the motion to compel is tied to the denial of leave to
supplement Appellant’s complaint; the videotape would be relevant only if the
district court had granted leave to supplement. As discussed above, the district
court did not abuse its discretion by denying leave to supplement the complaint.
Therefore, the district court did not abuse its discretion by denying the motion
to compel.
                             III. CONCLUSION
      For the above stated reasons, we find that Appellant did not raise a
genuine issue of material fact on any of his claims. We therefore AFFIRM.
      AFFIRMED.




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