     Case: 11-30928     Document: 00511995821         Page: 1     Date Filed: 09/21/2012




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

                                                                            FILED
                                                                        September 21, 2012
                                     No. 11-30928
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

RAYMOND HARRIS,

                                                  Plaintiff-Appellant

v.

CARL J. SMITH, Captain; DAVID VOORHIES, Major; LOUIS STROUD,
Lieutenant Colonel, Board chairman; REGIALD LAMIRUAL, Classification
Officer; JOEL HARRELL, Major, Investigative Services,

                                                  Defendants-Appellees


                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:10-CV-367


Before DeMOSS, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
        Raymond Harris, Louisiana prisoner # 85555, appeals the district court’s
dismissal of his civil rights action filed pursuant to 42 U.S.C. § 1983 after
granting the motion for summary judgment filed by the defendants. We review
the grant of a motion for summary judgment de novo. Xtreme Lashes, LLC v.
Xtended Beauty, Inc., 576 F.3d 221, 226 (5th Cir. 2009). Summary judgment is


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
   Case: 11-30928    Document: 00511995821      Page: 2    Date Filed: 09/21/2012

                                  No. 11-30928

appropriate “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). If a motion for summary judgment is properly supported, the
opposing party may not rely merely on allegations in its own pleadings, but
must, in its response, identify specific evidence in the record and articulate how
that evidence supports that party’s claims. Duffie v. United States, 600 F.3d 362,
371 (5th Cir. 2010). This burden is not satisfied by conclusory allegations or
unsubstantiated assertions. Id.
      Harris argues that the magistrate judge applied incorrect law, overlooking
the Supreme Court’s opinion in Wilkins v. Gaddy, 130 S. Ct. 1175 (2010)
regarding the quantum of injury required. The magistrate judge found that
Harris had failed to establish an Eighth Amendment violation because he had
not shown more than a de minimis injury. Harris is correct that the magistrate
judge applied the wrong standard after Wilkins, which rejected the “de minimis
injury” standard. See Wilkins, 130 S. Ct. at 1177. However, the district court,
noting Harris’s objection raising Wilkins, determined additionally that Harris
had presented “no evidence, except his own conclusory allegations, that force was
applied ‘maliciously or sadistically to cause harm.’”       As the district court
correctly noted, all Harris presented to the district court concerning the need for
the use of force was his allegations in his pleadings. The allegations in his
complaint were unsworn, and Harris offered no evidence in opposition to the
defendants’ motion for summary judgment. Harris may not rely merely on the
allegations in his pleadings. See Duffie, 600 F.3d at 371. The district court did
not err in granting summary judgment for the defendants on the claim of
excessive use of force.
      Harris argues that the record shows that Smith retaliated against him by
falsely writing him up for possessing marijuana in retaliation for Harris having
previously taken too many pills at pill call. The district court correctly concluded
that Harris had failed to establish retaliation because he did not show that

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                                  No. 11-30928

Smith retaliated against him for engaging in a constitutionally protected
activity. See Woods v. Smith, 60 F.3d 1161, 1164 (5th Cir. 1995); Jones v.
Greninger, 188 F.3d 322, 324-25 (5th Cir. 1999). Taking extra pills at pill call
is not a constitutionally protected activity. The district court did not err in
granting summary judgment for the defendants on Harris’s claim of retaliation.
      Regarding his claim of a denial of due process at his disciplinary
proceedings, Harris argues that the magistrate judge incorrectly stated the facts.
He contends that he alleged that he overheard a conversation between Major
Voorhies and Classification Officer Ladmirault just before his hearing which
suggested that Ladmirault was biased toward a finding of guilt.
      A claim that a prisoner was “improperly charged with things he did not
do,” standing alone, does not state a due process claim. See Collins v. King, 743
F.2d 248, 253 (5th Cir. 1984). Although Harris alleges that the disciplinary
report was false, he has never affirmatively denied that he possessed the
marijuana. Additionally, Harris has not shown the existence of a liberty interest
requiring due process, i.e., that his punishment, a change in his custody to
maximum -- extended lockdown and four weeks loss of yard privileges, imposed
an atypical or significant hardship beyond the ordinary incidents of prison life
such that he was deprived of a cognizable liberty interest. See Sandin v. Conner,
515 U.S. 472, 484 (1995); Dickerson v. Cain, 241 F. App’x 193, 194 (5th Cir.
2007). The district court did not err in granting summary judgment for the
defendants on the claims related to Harris’s disciplinary proceedings.
      AFFIRMED.




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