                                                              United States Court of Appeals
                                                                       Fifth Circuit
                                                                    F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                         July 19, 2007

                                                                Charles R. Fulbruge III
                               No. 06-40513                             Clerk
                             Summary Calendar




DAVID ALLEN CROSS,

                                         Plaintiff-Appellant,

versus

DOUGLAS DRETKE,
Director, Texas Department of Criminal Justice,
Correctional Institutions Division;
EILEEN KENNEDY; DAVID BROWNELL; STACY ALCORTA;
CAROLINA ROSAS; WARDEN WILLIAM STEPHENS;
ASSISTANT WARDEN ALFONSO CASTILLO; OFFICER JOHNNY MARTINEZ,

                                         Defendants-Appellees.



                        --------------------
            Appeal from the United States District Court
                 for the Southern District of Texas
                           No. 2:04-CV-108
                        --------------------



Before JOLLY, SMITH, and BARKSDALE, Circuit Judges.

PER CURIAM:*

     David Cross, a Texas prisoner, appeals a summary judgment for

defendants in his civil rights action filed under 42 U.S.C. § 1983.

He alleges that defendants retaliated against him for filing a



     *
        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opinion should not be published and is not precedent except under the limited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.
                             No. 06-40513
                                  -2-

civil rights action and that they were deliberately indifferent to

his serious medical needs.

     This court reviews the grant of a motion for summary judgment

de novo.   Hart v. Hairston, 343 F.3d 762, 764 (5th Cir. 2003).

Summary judgment is appropriate where, considering all of the alle-

gations in the pleadings, depositions, admissions, answers to in-

terrogatories, and affidavits, and drawing inferences in the light

most favorable to the nonmoving party, there is no genuine issue of

material fact and the moving party is entitled to judgment as a

matter of law.   FED. R. CIV. P. 56(c); Little v. Liquid Air Corp.,

37 F.3d 1069, 1075 (5th Cir. 1994) (en banc).      If the moving party

meets his burden of showing that no genuine issue exists, the

burden shifts to the nonmoving party to produce evidence or set

forth specific facts showing the existence of a genuine issue for

trial.   Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).

     Prisoners are constitutionally protected from retaliation for

complaining about a prison official’s actions to a supervisor or

for exercising their right of access to the courts.          Woods v.

Smith, 60 F.3d 1161, 1164 (5th Cir. 1995); Jackson v. Cain,

864 F.2d 1235, 1248 (5th Cir. 1989).        To state a valid claim for

retaliation under § 1983, a prisoner must (1) point to a specific

constitutional right that has been violated; (2) produce direct

evidence of a chronology of events pointing to the defendant’s

intent to retaliate against the prisoner for exercising a constitu-

tional right; (3) show a retaliatory adverse act, and (4) show
                           No. 06-40513
                                -3-

causation, i.e., that, but for the defendants’ retaliatory motive,

the complained of incident(s) would not have occurred.    Hart, 343

F.3d at 764.

     Because Cross has not briefed his district court arguments

that the defendants’ housing assignments with dangerous inmates and

their failure to investigate threats to his life were acts of re-

taliation, those claims are abandoned.    See Yohey v. Collins, 985

F.2d 222, 224-25 (5th Cir. 1983).   The summary judgment on those

claims is affirmed.

     Given the presence of a weapon in his cell, Cross has not

shown that a disputed issue of material fact exists relative to his

claim that the defendants’ disciplinary case against him for pos-

sessing a weapon was an act of retaliation.   Accordingly, the   sum-

mary judgment on that claim is also affirmed.

     Nor has Cross shown that the defendants’ two-day delay in re-

turning him to the first floor after he was injured was an act of

retaliation or that the delay constituted deliberate indifference

to his medical needs.    The summary judgment on those claims is

affirmed.

     Cross has shown, however, that it was error to grant summary

judgment for defendant Brownell on his claim the move from the

first floor to the second was retaliatory.    The district court de-

termined that the chronology of events did not support a retalia-

tion claim because neither defendant Rosas nor Brownell had been

named in a prior civil action or a grievance filed by Cross.     Cross
                            No. 06-40513
                                 -4-

has established a chronology of events showing retaliatory motive

given that the unexplained move followed his filing of a civil

rights action against prison officials.    Moreover, Cross asserts

that he named dDefendants Alcorta, Rosas, and Kennedy in his prior

civil action and that defendant Brownell conspired with them to

retaliate against him for filing the suit.   That Brownell was not

named in a prior civil action or grievance is not dispositive of

whether he had retaliatory intent when he authorized the move.

Defendants did not supply Brownell’s affidavit or otherwise explain

why he authorized the move.     Therefore, the defendants, as the

moving parties, did not meet their burden of proving that no genu-

ine issue existed relative to the reason that Brownell authorized

the move.    See Celotex, 477 U.S. at 324; Hart, 343 F.3d at 765

(noting that verified allegation in prisoner’s complaint was com-

petent summary judgment evidence that created genuine issue of ma-

terial fact relative to causation).

     Cross established that the move to the second floor was an

adverse act and that but for the act, he would not have injured

himself:    He was required to climb stairs in contradiction to his

medical restrictions and ultimately fell and sustained injuries.

Furthermore, as the discussion below demonstrates, a material issue

of fact exists regarding whether he has established the violation

of a specific constitutional right.

     Cross argues that the move to the second floor violated

his Eighth Amendment right to be free from cruel and unusual pun-
                            No. 06-40513
                                 -5-

ishment.   Prison officials violate the constitutional prohibition

against cruel and unusual punishment when they demonstrate delib-

erate indifference to a prisoner’s serious medical needs, consti-

tuting an unnecessary and wanton infliction of pain.         Wilson v.

Seiter, 501 U.S. 294, 297 (1991).     The Supreme Court has adopted

“subjective recklessness as used in the criminal law” as the ap-

propriate test for deliberate indifference. Farmer v. Brennan, 511

U.S. 825, 839-41 (1994).    Thus, a prison official acts with delib-

erate indifference “only if he knows that inmates face a substan-

tial risk of serious harm and disregards that risk by failing to

take reasonable measures to abate it.”     Id. at 847.    For an offi-

cial to act with deliberate indifference, “the official must both

be aware of facts from which the inference could be drawn that a

substantial risk of serious harm exists, and he must also draw the

inference.”   Id. at 837.   Acts of negligence or neglect are insuf-

ficient to give rise to a § 1983 cause of action.        Varnado v. Ly-

naugh, 920 F.2d 320, 321 (5th Cir. 1991).

     That Cross had medical restrictions related to an injured foot

and high blood pressure that required that he be housed on the

first floor is not disputed.   Defendants have produced no evidence

showing that Brownell was not aware of Cross’s medical restric-

tions.   Instead, their argument was that, because Cross failed to

produce evidence that he filed grievances about the move, he had no

evidence that Brownell was aware of the error.

     As the moving parties, however, defendants had the burden of
                            No. 06-40513
                                 -6-

producing evidence that no issue of material fact existed regarding

this claim.   See Celotex, 477 U.S. at 324.   Cross’s failure to pro-

duce evidence that he filed grievances alerting Brownell of the

problem with being on the second floor is irrelevant.        Whether

Brownell was aware that Cross faced a substantial risk of serious

harm if he was housed on the second floor is a genuine issue of

material fact.

     Because genuine issues of material fact are present regarding

Cross’s claim that the move to the second floor was retaliatory,

the summary judgment for Brownell is vacated, and the case is

remanded for proceedings consistent with this opinion.     See Hart,

343 F.3d at 765.   Because Cross did not sufficiently establish a

retaliatory motive for the other defendants, the summary judgment

for them relative to this claim is affirmed.

     AFFIRMED IN PART; VACATED AND REMANDED IN PART.
