     Case: 09-40368   Document: 00511053470   Page: 1   Date Filed: 03/16/2010




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

                                                FILED
                                                                  March 16, 2010

                                No. 09-40368                Charles R. Fulbruge III
                              Summary Calendar                      Clerk



CARLOS AVILES ARMENTA,


                                          Plaintiff - Appellant

v.

JACQUELINE CHATMAN, Mailroom supervisor, Telford Unit; STEPHANIE G.
DERAMCY, Mailroom clerk at Telford Unit; JOSETTA LINDSEY, Mailroom
employee, Telford Unit; LORETTA SMITH, Mailroom employee, Telford Unit;
DAISY DRISKELL, Mailroom employee, Telford Unit; WILLIAM BEATY, JR.,
Mailroom employee, Telford Unit; GINA SULLIVAN, Mailroom employee,
Telford Unit; CHEQUITA DUNBAR, Law library supervisor, Telford Unit;
TAMMY SHARP, Law library employee, Telford Unit; JONATHAN
ROBERSON, Law library employee,


                                          Defendants - Appellees




                 Appeal from the United States District Court
                       for the Eastern District of Texas
                             USDC No. 5:07cv178


Before KING, STEWART, and HAYNES, Circuit Judges.
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PER CURIAM:*
       Plaintiff-Appellant Carlos Aviles Armenta (“Armenta”), a pro se inmate,
filed suit against Defendants-Appellees Stephanie DeRamcy, Daisy M. Driskell,
Chequita Dunbar, Josetta L. Lindsey, Loretta Smith, Gina “Sullivan” Roseberry,
Jonathan Roberson, Tammy Sharp, William A. Beatty Jr., and Jacqueline
Chatman (collectively, “Defendants”), alleging violations of 42 U.S.C. § 1983 for
censoring his mail in retaliation for previously filed grievances and lawsuits.
The magistrate judge recommended that the district court grant Defendants’
motion for summary judgment, deny Armenta’s motion for summary judgment,
and dismiss the case with prejudice. The district court overruled Armenta’s
objections and adopted the magistrate judge’s recommendations. We AFFIRM.
                                   I. BACKGROUND
       This appeal arises from Armenta’s filings in connection with his criminal
case. Armenta is incarcerated at the Telford Unit of the Texas Department of
Criminal Justice, Correctional Institutions Division. Defendants are various
prison officials at the Telford Unit, including supervisors and employees from
the law library and mailroom.
       On January 6, 2006, Armenta filed a subsequent state habeas petition in
Texas state court; the application was dismissed by the Texas Court of Criminal
Appeals (TCCA) on June 28, 2006. On July 6, 2006, Armenta filed a “notice of
appeal” with the TCCA that he would file a petition for discretionary review.
The clerk of the court docketed the notice and assigned a case number. On July
13, 2006, however, the clerk sent a letter to Armenta advising him that the
Texas Rules of Appellate Procedure do not provide for discretionary review for
the denial of an application for habeas relief. The clerk’s letter further stated


       *
         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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that Armenta’s notice of appeal had been placed in his file, and that no further
action would be taken. Nonetheless, during the last week of July 2006, Armenta
filed a motion for a 30-day extension to file an appeal. The TCCA received the
motion on August 17, 2006. On August 12, 2006, Armenta filed his appeal. As
with all legal filings mailed by indigent prisoners, the appeal was processed by
law library and mailroom employees at the prison.
       After hearing nothing from the TCCA, Armenta wrote to the clerk of the
court. In a letter dated July 12, 2007, he was told that his application for a writ
of habeas corpus was dismissed as a subsequent application on June 28, 2006.
On July 18, 2007, he wrote to the clerk to confirm that he had filed his appeal,
enclosing a copy of the appeal. On July 19, 2007, he filed a motion to file an out-
of-time habeas appeal. Armenta also contacted the mailroom and law library to
determine if his appeal was mailed, and received no response. On July 22, 2007,
Armenta filed a grievance regarding the mailing of his appeal, but the grievance
was returned unprocessed because the grievance time period had expired. His
subsequent appeal was also rejected.
       On November 6, 2007, Armenta filed this suit, alleging that Defendants
destroyed his legal documents and censored his mail, thus preventing his appeal
from arriving at the TCCA and denying him access to the courts in violation of
the First Amendment.           Armenta further claimed that Defendants were
motivated by retaliation for Armenta’s previous lawsuits filed against various
prison officials.1 He also alleged that Defendants conspired to deprive him of his
rights.


       1
         In his complaint, Armenta claimed that in December 2004, he filed a lawsuit
regarding medical conditions which was opened, censored, and sent to the wrong court by
prison law library officials. He also alleged that in April 2005, mailroom employees tampered
with and destroyed one of five legal envelopes sent to the federal court in another lawsuit
against law library officers. He also stated that in April 2006, he filed another lawsuit in
federal court complaining about conspiracy to file false disciplinary charges against him,
motivated by retaliation.

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       After the case was referred to the magistrate judge, Armenta was ordered
to file an amended complaint clarifying his claims. In the amended complaint,
Armenta alleged substantially the same claims and sought to invoke the pendent
jurisdiction of the court.2 The magistrate issued a second order on April 14,
2008, ordering Defendants to answer or otherwise plead to Armenta’s amended
complaint. The magistrate’s order also provided that within thirty days after the
answer was filed, the parties were to disclose all information relevant to any
claims or defenses, and that no further discovery would be allowed except by
order of the court. On May 21, 2008, Defendants filed an answer in which they
asserted Eleventh Amendment and qualified immunity.
       Despite the order, Armenta served discovery demands on Defendants on
May 28, 2008. On June 4, 2008, Defendants filed a motion to quash Armenta’s
discovery demands as untimely. In response, Armenta filed a motion to compel
discovery.    On June 17, 2008, Defendants provided Armenta with initial
disclosures. Armenta filed a second motion to compel on June 18, 2008. In an
order dated July 2, 2008, the magistrate granted Defendants’ motion to quash
and denied Armenta’s motions to compel discovery. The magistrate held that
Defendants had already provided disclosure as required under the discovery
plan, and therefore Armenta’s document requests were moot.
       On July 3, 2008, Armenta filed a motion for summary judgment, another
motion to compel discovery, and a motion for continuance to allow for further
discovery. On August 4, 2008, Defendants filed a motion for summary judgment
and a response to Armenta’s motion. Armenta filed a response. He also filed a
motion to amend the complaint.
       The magistrate judge issued a report and recommendation that Armenta’s
motion for summary judgment be denied, that Defendants’ motion should be


       2
        This claim was not raised in subsequent pleadings or in the appellate briefs and is
therefore waived. See Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993).

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granted, and that all claims against Defendants should be dismissed with
prejudice.     The district court overruled Armenta’s filed objections and adopted
the magistrate’s report.         The district court granted Defendants’ motion for
summary judgment, denied all claims not previously ruled upon, and entered a
final judgment dismissing Armenta’s claims with prejudice. Armenta timely
appealed.
                                     II. DISCUSSION
       The relevant issues in this appeal are: (1) whether the district court erred
in granting summary judgment to Defendants; (2) whether the district court
abused its discretion in denying Armenta’s motion for leave to amend the
complaint; and (3) whether the district court abused its discretion in denying
Armenta’s discovery motions.3
       A. Summary Judgment
       The district court adopted the magistrate’s findings that: (1) Armenta’s
denial of access to court claim was meritless, because he could not demonstrate
actual injury caused by any alleged delay in transmitting his mail; (2) Armenta
failed to establish causation in his retaliation claim, and failed to allege
operative facts of any conspiracy 4 ; and (3) Armenta failed overcome his burden


       3
          Defendants request that we acknowledge this appeal as a “strike” pursuant to the
“three strikes” provision of the Prison Litigation Reform Act (PLRA), 28 U.S.C. § 1915(g). We
have previously held that the district court’s dismissal of Armenta’s § 1983 action for failure
to state a claim counts as one strike under 28 U.S.C. § 1915(g). See Armenta v. Stanley, 211
F. App’x 266, 267, No. 05-40880, 2006 WL 3455799, at *1 (5th Cir. Nov. 20, 2006), cert. denied,
127 S. Ct. 2044 (2007). Here, however, Armenta’s claims were dismissed on the merits; neither
the magistrate court nor the district court dismissed his action as frivolous or malicious, or for
failing to state a claim pursuant to § 1915(e)(2), which permits dismissal on these grounds.
Compare id.; cf. Wilson v. Lynaugh, 878 F.2d 846, 851 (5th Cir. 1989) (noting that § 1915
dismissal is not a decision on the merits). Accordingly, we decline to classify this appeal as
a “strike.”
       4
        The magistrate court analyzed Armenta’s conspiracy claims under § 1983. However,
Armenta specifically alleged in his original and amended complaints violations of 42 U.S.C.
§ 1985(3), the civil rights conspiracy statute. Nonetheless, Armenta failed to raise the issue
in his motion for summary judgment or in his appellate briefs, and therefore waives it. See

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on qualified immunity because he failed to demonstrate a constitutional
violation or that Defendants acted unreasonably.
        We review the grant of summary judgment de novo, applying the same
standards as the district court. Riverwood Int’l Corp. v. Employers Ins. of
Wausau, 420 F.3d 378, 382 (5th Cir. 2005). Summary judgment is appropriate
“if the pleadings, the discovery and disclosure materials on file, and any
affidavits show that there is no genuine issue as to any material fact and that
the movant is entitled to judgment as a matter of law.” F ED. R. C IV. P. 56(c). The
moving party has the burden of demonstrating that there are no genuine issues
of material fact in dispute. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). We
“view the evidence in the light most favorable to the nonmovant, drawing all
reasonable inferences in the nonmovant’s favor.” Riverwood, 420 F.3d at 382
(citation omitted).
              1. Denial of Access to Courts
       Section 1983 permits a private right of action for violations of federal law
by those acting under the color of state law. 42 U.S.C. § 1983. Here, Armenta
alleges that Defendants denied him access to the courts in violation of the First
Amendment when they failed to mail his motion for an extension of time and
therefore prevented it from arriving at the TCCA in a timely manner.
       An inmate alleging denial of the right of access to courts must demonstrate
a relevant, actual injury stemming from the defendant’s unconstitutional
conduct. Brewster v. Dretke, 587 F.3d 264, 769, (5th Cir. 2009) (citing Lewis v.
Casey, 518 U.S. 343, 351 (1996)); Walker v. Navarro County Jail, 4 F.3d 410, 413
(5th Cir. 1993). The right of access only encompasses a reasonably adequate
opportunity to file nonfrivolous legal claims challenging convictions or conditions
of confinement. Johnson v. Rodriguez, 110 F.3d 299, 310-11 (5th Cir. 1999).


Yohey, 985 F.2d at 225 (“Although we liberally construe the briefs of pro se appellants, we also
require that arguments must be briefed to be preserved.”).

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This requires the inmate to allege that his ability to pursue a “nonfrivolous,”
“arguable” legal claim was hindered. Brewster, 2009 WL 3738532, at *2 (citing
Christopher v. Harbury, 536 U.S. 403, 415 (2002)).
      As the magistrate court found, Armenta cannot demonstrate injury
because his legal claim is not tenable. Under Texas law, a motion for rehearing
on an order that denies habeas corpus relief under the Texas Code of Criminal
Procedure may not be filed. T EX. R. A PP. P. 79.2(d). The July 13, 2006 letter
from the TCCA clerk states plainly that, under this rule, discretionary review
of denial of a habeas petition is not available. The letter also states that the
notice of appeal was received and would be placed in his file, and that no further
action would be taken. Accordingly, Armenta could not proceed with his appeal
of the denial of habeas relief. Because Armenta’s appeal of his habeas denial is
impermissible under Texas law, he cannot raise a constitutional claim that his
ability to pursue the claim was hindered. See Ruiz v. United States, 160 F.3d
273, 275 (5th Cir. 1998) (noting, where plaintiff’s legal mail was withheld, that
“it can be shown that no real prejudice resulted because [prisoner plaintiff’s]
appeal was ultimately frivolous”).
      Armenta incorrectly relies on Brewer v. Wilkinson, 3 F.3d 816 (5th Cir.
1993), in which we reversed summary judgment for the defendants because the
prisoner plaintiff set forth a cognizable constitutional claim for denial of access
to the courts by alleging that prison officials arbitrarily opened an item of his
outgoing legal mail and removed a “writ of mandamus,” thereby preventing the
document from arriving in the district court. 3 F.3d at 825-26. Here, however,
Defendants presented evidence that Armenta’s motion for an extension of time
left the mailroom on July 25, 2006, and that the TCCA received the document.
Armenta offers no supporting evidence that the document was not properly
mailed, and his bald assertions are insufficient to overcome summary judgment.
Cf. F ED. R. C IV. P. 56(e) (requiring more than mere allegations in the pleadings).

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Even if Defendants had held the mailing, the delay would not have caused actual
injury, because Armenta’s claim was invalid under Texas law. See Ruiz, 160
F.3d at 275.
               2. Retaliation Claims
      Armenta also argues that Defendants withheld his motion for an extension
in retaliation for his lawsuit against defendants Dunbar and Sharp, and the
warden of the Telford Unit. To prove retaliation, Armenta must show: (1) the
invocation of a specific constitutional right; (2) Defendants’ intent to retaliate
against him for his exercise of the right; (3) a retaliatory adverse act; and (4)
causation. Morris v. Powell, 449 F.3d 682, 684 (5th Cir. 2006). Mere conclusory
allegations of retaliation are insufficient; Armenta must allege more than his
personal belief that he is the victim of retaliation. Jones v. Greninger, 188 F.3d
322, 325 (5th Cir. 1999) (citations omitted). Here, Armenta has not shown that
his prior lawsuit against library officials and the warden motivated any
retaliation, nor has he shown “a chronology of events from which retaliation may
plausibly be inferred.” Id. Accordingly, Defendants were correctly granted
summary judgment on this claim.
               3. Qualified Immunity
      Armenta argues that Defendants are not entitled to qualified immunity.
Once a public official raises the defense of qualified immunity, a plaintiff must
demonstrate (1) a violation of a constitutional right and (2) that the right at
issue was clearly established at the time of the violation. Pearson v. Callahan,
— U.S. —, 129 S.Ct. 808, 815-16 (2009). Because Armenta failed to show that
Defendants violated his constitutional rights regarding his retaliation claim, he
failed to show that Defendants were not entitled to qualified immunity. See
Zarnow v. City of Wichita Falls, Tex., 500 F. 3d 401, 407 (5th Cir. 2007).




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      B. Motion for Leave to Amend Complaint
      Armenta argues that the district court erred when it denied his motion for
leave to amend the complaint. We review the district court’s denial of the
motion for abuse of discretion. Fahim v. Marriott Hotel Servs., Inc., 551 F.3d
344, 347 (5th Cir. 2008).
      The magistrate did not rule specifically on the motion for leave to amend
in her report. In the order adopting the magistrate’s recommendations, the
district court issued an omnibus denial of all undecided motions in the case,
including, presumably, the motion for leave to amend. Armenta states that in
his initial complaint, he alleged that Defendants destroyed his appeal because
the TCCA did not send him a notice of receipt. In the amended complaint, he
argues, he would have alleged that the TCCA did not send a notice of receipt or
rule on the appeal because the motion arrived untimely due to Defendants
holding the motion for 23 days.
      Rule 15(a) provides in part that the “court should freely give leave when
justice so requires.” F ED. R. C IV. P. 15(a)(2). While the court probably should
have listed reasons for the denial, see Foman v. Davis, 371 U.S. 178, 182 (1962),
the well-developed record demonstrates that Armenta’s amendment would have
been futile to his claims. See Halbert v. City of Sherman, Tex., 33 F.3d 526, 529-
30 (5th Cir. 1994) (concluding that based on a well-developed record that
plaintiff’s claim would fail as a matter of law, remand to allow leave to amend
was not required). Therefore, there was no abuse of discretion.
      C. Discovery Motions
      Armenta also argues that the district court erred in adopting the
magistrate’s recommendation to deny his motion for continuance to conduct
discovery, and his motions to compel discovery.
      We review the denial of discovery motions for abuse of discretion.
Transamerica Ins. Co. v. Avenell, 66 F.3d 715, 721 (5th Cir. 1995) (motion for

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continuance); Wiwa v. Royal Dutch Petroleum Co., 392 F.3d 812, 817 (5th Cir.
2004) (motion to compel discovery). We affirm the denial of the motion “unless
it is arbitrary or clearly unreasonable.” Transamerica Ins. Co., 66 F.3d at 721.
      We find no abuse of discretion. In its July 2 order, the magistrate denied
Armenta’s motions to compel and granted Defendants’ motion to quash, because
Defendants had already provided disclosure as required under the discovery
plan, and therefore Armenta’s document requests were moot. The court also
referred to its earlier scheduling order that no discovery (beyond initial
disclosures) could occur without the court’s consent. In its July 16 order, the
magistrate denied Armenta’s motion for continuance pending discovery because
the motion addressed the same discovery demands that the court quashed in its
July 2 order. Neither ruling was arbitrary or clearly unreasonable. Id.
                             III. CONCLUSION
      For all the foregoing reasons, we affirm the district court.




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