     Case: 12-10820       Document: 00512281808         Page: 1     Date Filed: 06/20/2013




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

                                                                            FILED
                                                                           June 20, 2013
                                     No. 12-10820
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

CHRISTOPHER FLORES,

                                                  Plaintiff-Appellant

v.

DALE L. BOECKER, Correctional Security Officer V,

                                                  Defendant-Appellee


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 1:10-CV-98


Before REAVLEY, JOLLY, and OWEN, Circuit Judges.
PER CURIAM:*
       Christopher Flores, Texas prisoner # 1336588, filed this 42 U.S.C. § 1983
action against Correctional Security Officer Dale L. Boecker, alleging that on
August 20, 2009, Boecker intentionally and willfully closed a cell door on his
right hand, causing the fifth metacarpal bone to break. He alleged that Boecker
closed the door on his hand in retaliation for his repeated complaints about
Boecker’s failure to timely perform an ingress and egress. Further, Flores
alleged that Boecker was deliberately indifferent to his serious medical needs

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-10820

when Boecker ignored his complaint that his hand was broken, thereby resulting
in the delay of medical treatment and alleged violations of the First, Eighth, and
Fourteenth Amendments.
      Following a Spears1 hearing, the magistrate judge summarily dismissed
due process and official capacity claims, which Flores has not briefed and we do
not consider. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). The
primary issue on appeal concerns the court’s grant of summary judgment for
Boecker on Flores’s claim of retaliation.
      We review a grant of summary judgment de novo. Freeman v. Tex. Dep’t
of Criminal Justice, 369 F.3d 854, 859 (5th Cir. 2004). To state a valid claim for
retaliation under § 1983, “a prisoner must allege (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.” Jones v.
Greninger, 188 F.3d 322, 324-25 (5th Cir. 1999). The magistrate judge held that
Flores failed to establish retaliatory intent and causation.
      To prove retaliation, “[t]he inmate must produce direct evidence of
motivation or, the more probable scenario, allege a chronology of events from
which retaliation may plausibly be inferred.” Woods v. Smith, 60 F.3d 1161,
1166 (5th Cir. 1995) (internal quotation and citation omitted). “Causation
requires a showing that but for the retaliatory motive the complained of incident
. . . would not have occurred.” McDonald v. Stewart, 132 F.3d 225, 231 (5th Cir.
1998) (internal quotation and citation omitted).
      The parties here offered conflicting evidence on the issue of Boecker’s
intent to injure Flores. By live testimony and by affidavit, Flores alleged that
Boecker intentionally and willfully slammed the cell door on his hand after
Flores complained about Boecker’s failure to timely perform an ingress and
egress, and after he threatened to notify Boecker’s supervisor and to file a


      1
          Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).

                                              2
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                                  No. 12-10820

grievance. Boecker asserted in his own affidavit that he did not see Flores’s
finger when he closed the cell door and that the injury to Flores’s finger was not
intentional. Whether or not Boecker intended to injure Flores is critical to
Flores’s claim of retaliation, and also bears on whether Boecker was deliberately
indifferent toward Flores. See, e.g., Gibbs v. King, 779 F.2d 1040, 1046 (5th Cir.
1986) (“A guard thus may not harass an inmate in retaliation for the inmate
complaining to supervisors about the guard’s conduct.”). Resolution of Boecker’s
intent is dependent on a fact-sensitive inquiry and credibility determination. In
light of the contradictory record evidence, Flores has presented an issue of fact
that precludes summary judgment. Accordingly, we reverse the district court’s
judgment and remand for further proceedings. See Jackson v. Cain, 864 F.2d
1235, 1248 (5th Cir. 1989). In so doing, we express no opinion as to the merits
of the retaliation claim.
         Although Flores also challenges on appeal the denial of his spoliation
motion, the court’s ruling was predicated on the grant of summary judgment,
which we have now held was erroneous. We therefore need not address this
issue.
         REVERSED AND REMANDED.




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