     Case: 09-40298     Document: 00511106327          Page: 1    Date Filed: 05/10/2010




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

                                                  FILED
                                                                            May 10, 2010

                                     No. 09-40298                           Lyle W. Cayce
                                   Summary Calendar                              Clerk



CARLOS AVILES ARMENTA,

                                                   Plaintiff-Appellant,
v.

JOHN PRYOR, Correctional Officer, et al.,

                                                   Defendants-Appellees.




                   Appeal from the United States District Court
                         for the Eastern District of Texas
                               USDC No. 5:06-CV-76


Before JOLLY, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
        Plaintiff-Appellant Carlos Aviles Armenta, an inmate of the Texas
Department of Criminal Justice proceeding pro se, appeals the district court’s
grant of summary judgment to Defendant-Appellee John Pryor 1 on his 42 U.S.C.

        *
         Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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.
        1
         Although Pryor is the only defendant to have appeared in this case, the district court
dismissed the case as to all Defendants, holding that the parties who had not joined in the
successful motion for summary judgment were nevertheless entitled to benefit from it. See
Lewis v. Lynn, 236 F.3d 766, 768 (5th Cir. 2001) (“[W]here a defending party establishes that
plaintiff has no cause of action . . . this defense generally inures also to the benefit of a
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§ 1983 claim for unlawful retaliation. Armenta also appeals several of the
district court’s evidentiary decisions and the denial of leave to amend his
complaint. For the following reasons, we affirm.
                                            I.
       On December 23, 2005, Armenta was participating in outdoor recreation
in an outdoor area of the Telford Unit Prison. Pryor, a necessities officer,
entered Armenta’s cell and removed a blanket that had been tied to a light
fixture. Pryor claims that he discovered an edge weapon in Armenta’s cell.
Pryor identified Armenta as the sole occupant of the cell and wrote him a
disciplinary case for possession of a weapon. Lieutenant Lann, the supervising
officer, took the weapon and approved the disciplinary case.                During the
disciplinary hearing, Armenta claimed that the weapon was not his and had
been planted there by Pryor and Lann in retaliation for prior grievances filed by
Armenta.     Armenta was found guilty of possession of a weapon and was
punished with 15 days of cell restriction, a reduction in line-class status, and loss
of 365 days of good time.
       On April 7, 2006, Armenta, proceeding pro se, filed a civil rights complaint
pursuant to 42 U.S.C. § 1983, alleging that Pryor, Lann, and “Johnson”
conspired to write him a false disciplinary report in retaliation for his filing
administrative grievances. The district court originally dismissed the case based
on Heck v. Humphrey, 512 U.S. 477 (1994). This court vacated the judgment,
holding that Armenta’s claims of retaliation were not subject to dismissal under
Heck. Armenta v. Pryor, 254 F. App’x 376 (5th Cir. 2007) (per curiam)
(unpublished).
       After remand, the district court issued an Order to Answer. The order
indicated that initial disclosures would be due 30 days after the answer was



defaulting defendant.” (internal quotation marks and citation omitted)).

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filed, but precluded any further discovery without leave of the court. Pryor
answered the complaint and submitted supplemental disclosures. Armenta filed
a notice with the district court indicating his intent to serve Pryor with requests
for production of documents and interrogatories. Pryor responded, stating that
such requests were not in compliance with the court’s initial order regarding
discovery.
      On May 16, 2008, Armenta moved to amend his complaint by adding new
defendants and new claims. The district court denied leave to amend. Armenta
also filed two motions to compel discovery, which the district court granted in
part. Armenta and Pryor filed motions for summary judgment. The magistrate
judge issued a report and recommendation to grant Pryor’s motion for summary
judgment and dismiss the action with prejudice. The district court adopted the
recommendations and entered final judgment in favor of all defendants.
Armenta timely filed a notice of appeal.
                                       II.
      We review a district court’s grant of summary judgment under Rule 56 de
novo, applying the same legal standards as the district court. Berquist v. Wash.
Mut. Bank, 500 F.3d 344, 348 (5th Cir. 2007).         “In deciding a motion for
summary judgment, the court must determine whether the submissions show
that there is no genuine issue as to any material fact and that the moving party
is entitled to judgment as a matter of law.” Id. (citation omitted).
      We review a district court’s denial of leave to amend a complaint under an
abuse of discretion standard. Ackerson v. Bean Dredging LLC, 589 F.3d 196, 208
(5th Cir. 2009). The Federal Rules of Civil Procedure provide that leave to
amend “shall be freely given when justice so requires.” Fed. R. Civ. P. 15(a).
However, leave to amend “is by no means automatic.” Ashe v. Corley, 992 F.2d
540, 542 (5th Cir. 1993) (internal quotation marks and citation omitted). “[A]



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district court may refuse leave to amend a complaint if the complaint as
amended would be subject to dismissal.” Ackerson, 589 F.3d at 208.
       We review a district court’s discovery and evidentiary rulings under a
deferential abuse of discretion standard. Gomez v. St. Jude Medical Daig Div.
Inc., 442 F.3d 919, 927 (5th Cir. 2006).
       To establish a claim for retaliation, Armenta must show that (1) he
invoked a specific constitutional right; (2) the defendants intended to retaliate
against him for the exercise of that right; (3) there was a retaliatory adverse
action; and (4) the action would not have occurred but for the retaliatory motive.
See Johnson v. Rodriguez, 110 F.3d 299, 310 (5th Cir. 1997) (citation omitted).
Mere conclusory allegations of retaliation will not suffice; Armenta must produce
direct evidence of retaliation or a chronology of events from which retaliation
may plausibly be inferred. Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995).
We have cautioned district courts to “carefully scrutinize” claims of retaliation
in order “[t]o assure that prisoners do not inappropriately insulate themselves
from disciplinary actions by drawing the shield of retaliation around them . . . .”
Id. While the existence of a “legitimate prison disciplinary report” is not an
“absolute bar to a retaliation claim” it is certainly “probative and potent
summary-judgment evidence.” Id.
       Armenta argues on appeal that he provided sufficient summary-judgment
evidence of retaliation because (1) no weapon was produced at the disciplinary
hearing; (2) the defendants made contradictory statements regarding the size of
the weapon; (3) no pictures of the weapon were produced; and (4) a short time
elapsed between the filing of his grievances and his prior lawsuit 2 and the


       2
         In that case, as here, Armenta argued that he was retaliated against for filing
grievances. We affirmed the grant of summary judgment in that case, holding that Armenta
had “not shown that his filing of complaints or grievances motivated any retaliation nor has
he shown a chronology of events from which retaliation could be inferred.” Armenta v. Rupert,
255 F. App’x 32, 33 (5th Cir. 2007) (per curiam) (unpublished).

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discipline action.      Armenta has failed, however, to provide any competent
summary-judgment evidence of intent or causation. As the district court noted,
most of Armenta’s grievances were filed months before the alleged retaliatory act
and he provides no evidence that any of the Defendants were named in, or had
any knowledge of, his prior grievances or his lawsuit. Pryor testified that he had
no knowledge of any of Armenta’s complaints and had no interactions with him
prior to the day he discovered the weapon in his cell. Armenta presented no
evidence to the contrary. The alleged inconsistencies in the testimony regarding
the size of the weapon likewise do not support an inference of retaliatory intent.3
Furthermore, Armenta received a legitimate disciplinary conviction for
possession of a weapon.           He presented no competent summary-judgment
evidence that he would not have been punished but for the retaliatory motive.
Armenta has utterly failed to establish a chronology of events from which
retaliation may plausibly be inferred. Woods, 60 F.3d at 1166.4
       Armenta asserts that the district court abused its discretion by denying
him leave to amend his complaint. Armenta sought to add Warden Rupert,
Captain Roseberry, Grievance Investigator Wilson and Counsel Substitute
Johnson. Armenta also sought to add a due-process claim and a claim for
conspiracy to his complaint. The district court denied leave to amend, finding
that Armenta offered no justification for the delay in naming the additional
defendants and offered no facts to support his claims.




       3
         During the disciplinary hearing, Pryor and Lann described the weapon as consisting
of a four-to-five inch blade with a paper handle. In an inter-office communication, Lann
described the weapon as being six inches long. This testimony is not necessarily inconsistent,
as the latter description could be the total length of the weapon.
       4
        Because we hold that Armenta failed to put forth any competent summary-judgment
evidence that could lead to an inference of retaliation, we need not address the district court’s
alternative grounds for granting summary judgment to the defendants.

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      The district court did not abuse its discretion.        Armenta’s proposed
amendment would have been futile as to his claims against Johnson. As the
district court noted, under our precedent, counsel substitutes act on behalf of the
inmate, not the state, in a disciplinary hearing and are therefore not amenable
to suit under § 1983. Banuelos v. McFarland, 41 F.3d 232, 234 (5th Cir. 1995)
(per curiam). Furthermore, Armenta sought to add a due process claim
regarding his prison hearing, which would have been barred by Edwards v.
Balisok, as it necessarily calls his guilt for possession of a weapon into question.
See 520 U.S. 641, 648 (1997). Finally, Armenta provides no explanation as to
why he failed to amend his complaint to add the additional defendants until two
years after the filing of his lawsuit. Under these circumstances, the denial of
leave to amend was within the sound discretion of the district court.
      Armenta also argues that the district court erred by denying his motion
for a continuance, motion in limine, motion for sanctions, and motions to compel
discovery. To prevail, Armenta must demonstrate that the denial of additional
discovery prejudiced his case. United States v. Garrett, 571 F.2d 1323, 1326 (5th
Cir.1978) (“[E]rrors made with regard to the allowance of discovery do not
require reversal unless they result in substantial prejudice to a party’s case.”)
As an initial matter, we note that the district court granted Armenta an
extension of time to file his motion for summary judgment so that he could
conduct additional discovery. The district court also granted his motions to
compel discovery in part. Armenta attached nearly 100 pages of documentary
evidence to his motion for summary judgment, but could not establish an issue
of material fact as to his retaliation claim. The district court did not abuse its
discretion by refusing to allow additional discovery in this case.
      For the foregoing reasons, the judgment of the district court is hereby
AFFIRMED.



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