     Case: 11-40357     Document: 00511796868         Page: 1     Date Filed: 03/22/2012




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

                                                                            FILED
                                                                          March 22, 2012
                                     No. 11-40357
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

FREDERICK JEROME CRUMBLEY,

                                                  Plaintiff-Appellant
v.

FRANK HELEM; GLENN HOPSON, Captain; CONNELY MOORE, Captain;
SHERLY MEADOR, Food Service Manager,

                                                  Defendants-Appellees


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                              USDC No. 9:09-CV-14


Before HIGGINBOTHAM, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
        Frederick Jerome Crumbley, Texas prisoner # 607639, appeals the district
court’s judgment granting the defendants’ motions for summary judgment and
dismissing his 42 U.S.C. § 1983 complaint. Crumbley’s motion for leave to file
an out-of time reply brief is GRANTED.
        According to Crumbley, he was not advised by the magistrate judge that
he was waiving his Seventh Amendment right to a jury trial by allowing her to
handle the proceeding and by attending a hearing. He further asserts that he

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-40357

filed a second civil rights complaint, which included a jury demand that was
consolidated with the original complaint, and that he did not consent to the
magistrate judge handling that case. There was no jury trial held because a
summary judgment was properly granted after the magistrate judge determined
that there were no genuine issues of material fact for a jury to decide. Thus, the
jury demand became moot. See Baranowski v. Hart, 486 F.3d 112, 126 (5th Cir.
2007). With respect to his second action, after Crumbley refused to allow the
magistrate judge to handle both proceedings as the judge, the magistrate judge
did not consolidate the actions. Crumbley’s refusal to consent to the magistrate
judge handling the second case had no effect on the instant proceeding. This
argument is without merit.
      This court reviews a grant of summary judgment de novo. Dillon v.
Rogers, 596 F.3d 260, 266 (5th Cir. 2010). Summary judgment is proper “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).
However, “[a] qualified immunity defense alters the usual summary judgment
burden of proof.” Brown v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010), cert.
denied, 131 S. Ct. 2932 (2011). While the defendant official must initially assert
the defense, “[o]nce the defendant has done so the burden shifts to the plaintiff
to rebut this defense by establishing that the official’s allegedly wrongful conduct
violated clearly established law.” Bazan ex rel. Bazan v. Hidalgo Cnty., 246 F.3d
481, 489 (5th Cir. 2001).
      On appeal, Crumbley argues that Major Helem was not entitled to
summary judgment dismissing his claim of retaliation based on qualified
immunity because Helem was aware that Crumbley’s medical restrictions
precluded him from working at the furniture factory.            Helem submitted
Crumbley’s prison classification records, which reflected that he should not be
assigned to a job where he would be exposed to environmental pollutants,
chemicals, or irritants. Helem pointed out that there was no evidence that he

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                                 No. 11-40357

was personally responsible for Crumbley’s job assignment or that Crumbley’s job
as a fire watchman involved exposure to pollutants, irritants, or chemicals.
Crumbley’s relevant medical records did not reflect that he had sustained any
injuries as a result of exposure to those substances. Thus, even if Helem made
the assignment, Crumbley did not present evidence showing that Helem had
done so with knowledge or an intent to expose Crumbley to a substantial risk of
harm. Crumbley failed to show that the Officer Helem’s alleged conduct violated
his constitutional rights under the Eighth Amendment. See Farmer v. Brennan,
511 U.S. 825, 832 (1994); Jackson v. Cain, 864 F.2d 1235, 1246 (5th Cir. 1989).
Thus, the district court did not err in providing Helem qualified immunity from
this claim.
      Crumbley argues that because he complained about his job assignment,
Major Helum, Captain Hopson, and Captain Moore conspired to have him
convicted of a prison disciplinary weapons offense based on fabricated evidenced
in violation of his rights under the First and Fourteenth Amendments. He has
not shown that he was denied any constitutional rights in connection with the
disciplinary charge and conviction because it was overturned on appeal and
deleted from his computer file, and his good-time credits were restored.
Regarding Crumbley’s argument that the charge was an act of retaliation, the
defendants presented summary judgement evidence showing that there was a
reasonably objective basis for charging Crumbley with possession of weapons,
and Crumbley did not present any material evidence to dispute those facts. Nor
has he presented any evidence showing that his assignment to the kitchen dock
exposed him to pollutants or chemical irritants or that he suffered a burn on his
side as the result of such exposure. Crumbley has not provided any evidence
showing that the disciplinary action or his job assignment were acts of
retaliation intended to inflict harm upon him. See Woods v. Smith, 60 F.3d 1161,
1166 (5th Cir. 1995).



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      Crumbley argues that the magistrate judge erred in dismissing his claims
against the prison administrative and supervisory officials because they
disregarded his grievances, including his life endangerment complaints, arising
from his alleged mistreatment by prison officers. The defendants introduced
records showing that Crumbley’s grievances were addressed and that his life
endangerment claims were investigated. Crumbley had no constitutional right
to having his prisoner grievances decided in his favor. See Gartrell v. Gaylor,
981 F.2d 254, 259 (5th Cir. 1993). He failed to respond with any evidence raising
a genuine issue of fact whether the supervisory officers and administrative
officials engaged in retaliatory acts or violations of Crumbley’s constitutional
rights. Thus, the unrebutted summary judgment evidence established that
these officials were entitled to qualified immunity.
      The district court properly determined that Crumbley could not pursue his
claims against Officer Meador because Crumbley failed to exhaust his prison
administrative remedies concerning those claims. See 42 U.S.C. § 1997e(a);
Johnson v. Johnson, 385 F.3d 503, 515 (5th Cir. 2004). Crumbley’s argument
that the magistrate judge abused her discretion in denying his request for
counsel was without merit because Crumbley’s claims were not complex and he
adequately presented them to the district court. See Castro Romero v. Becken,
256 F.3d 349, 353-54 (5th Cir.2001).
      Crumbley argues that the magistrate judge erroneously treated his motion
for summary judgment as a Federal Rule Civil Procedure 60(b) motion in order
to dismiss his complaint. Crumbley did not file a notice of appeal from the
district court’s denial of his postjudgment motion. His earlier notice of appeal
does not encompass the postjudment order because Crumbley could not have
intended to appeal a ruling entered after his first notice of appeal had been filed.
See In re Hinley, 201 F.3d 638, 642 (5th Cir 2000). Thus, the court lacks
jurisdiction to address this issue. Id.
      The district court’s order granting the motions for summary judgment

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and dismissing the complaint is AFFIRMED.




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