     Case: 12-40513       Document: 00512311844           Page: 1    Date Filed: 07/17/2013




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

                                                                              FILED
                                                                             July 17, 2013
                                     No. 12-40513
                                   Summary Calendar                          Lyle W. Cayce
                                                                                  Clerk

WILLI FREE I GARNER,

                                                   Plaintiff-Appellant

v.

CANDACE MOORE, Law Library Supervisor; J. M. GARCIA, Assistant
Director, Region IV; VICKIE BARROW, Program Specialist III, Access to
Courts; JESSE WALDEN, Law Library Officer; BELINDA J. FERNANDEZ,
Law Library Officer; OFFICER GERALD OR JOE R. MARTINEZ, Law Library
Officer; Senior Warden ERNEST GUTIERREZ, JR.; Assistant Warden
ROBERT CRITES; Assistant Warden NORRIS JACKSON,

                                                   Defendants-Appellees


                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 2:11-CV-169


Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Willi Free I Garner, Texas prisoner # 606635, appeals the district court’s
grant of summary judgment for the defendants and dismissal of 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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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§ 1983 complaint. Garner alleged that the defendants denied him access to the
courts and retaliated against him for complaining about the law library and its
staff in a prior proceeding, in various prison grievances, and in various letters
of complaint he sent to prison officials. Some claims and defendants were
dismissed pursuant to the initial screening provisions of 28 U.S.C. § 1915A, and
Garner voluntarily dismissed Jesse Walden. As for the remaining defendants,
Candace Moore, Joe Martinez, and Belinda Fernandez, the district court
granted summary judgment based on its conclusions that Garner lacked
standing to bring a claim of denial of access to the courts, that he had failed to
administratively exhaust two of his claims, and that the defendants were
entitled to qualified immunity because Garner had not established a valid
claim of retaliation.
      Because the parties did not object to the magistrate judge’s report and
recommendation, which the district court adopted, we review for plain error.
See Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996)
(en banc). To show plain error, a party must show a forfeited error that is clear
or obvious and that affects his substantial rights. Puckett v. United States, 556
U.S. 129, 135 (2009). Even if a party makes such a showing, this court has the
discretion to correct the error, but only if it “seriously affect[s] the fairness,
integrity, or public reputation of judicial proceedings.” Id.
      As an initial matter, the district court erred in finding that Garner
lacked standing to bring a claim of denial of access to the courts because he had
not shown an actual injury. For purposes of standing, the “injury in fact” test
requires both “an injury to a cognizable interest” and that “the party seeking
review be himself among the injured.” Lujan v. Defenders of Wildlife, 504 U.S.
555, 563 (1992). If the plaintiff was the “object” of the challenged action, then
“there is ordinarily little question that the action or inaction has caused him


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injury.” Id. at 561-62; see also United States v. DeCay, 620 F.3d 534, 538 n.2
(5th Cir. 2010) (“[W]hether [a plaintiff] has standing to make the argument is
distinct from whether the argument has merit.”). Garner was the “object” of
the defendants’ actions, which allegedly interfered with his constitutional
rights, and he was himself among the injured. See Lujan, 504 U.S. at 561-63.
Nonetheless, for the reasons discussed below, Garner has not shown that this
error affected his substantial rights.
      The district court also concluded that Garner failed to exhaust his
administrative remedies for his claims that he was denied legal materials in
August and September 2009 and that he was denied law library access in
October 2009. Under the Prison Litigation Reform Act, a prisoner must
exhaust his available administrative remedies prior to filing a Section 1983
complaint. 42 U.S.C. § 1997e(a). The district court found no evidence in the
record that Garner filed any grievances between July 5, 2009, and December
8, 2009. On appeal, Garner argues he exhausted those administrative remedies
that were available and that he filed other grievances that were lost, destroyed,
or ignored. Yet Garner points to no evidence that supports his assertion that
other grievances were lost, destroyed, or ignored. “[C]onclusory allegations,
unsubstantiated assertions, or only a scintilla of evidence” will not satisfy the
nonmoving party’s burden on summary judgment. Freeman v. Tex. Dep’t of
Criminal Justice, 369 F.3d 854, 860 (5th Cir. 2004). Garner has not shown the
district court plainly erred in finding that he failed to show he exhausted these
claims. Puckett, 556 U.S. at 135.
      The district court granted summary judgment and dismissed Garner’s
remaining claims based on a conclusion that the defendants were entitled to
qualified immunity.     The test for qualified immunity has two prongs:
“(1) whether the plaintiff has alleged a violation of a clearly established


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constitutional right; and (2) if so, whether the defendant’s conduct was
objectively unreasonable in the light of the clearly established law at the time
of the incident.” Domino v. Tex. Dep’t of Criminal Justice, 239 F.3d 752, 755
(5th Cir. 2001). The district court determined Garner had failed to establish
a constitutional violation.
      In his complaint, Garner alleged that prison officials retaliated against
him for filing or threatening to file grievances and lawsuits and denied him
access to the courts. A prisoner alleging retaliation must establish “(1) a
specific constitutional right, (2) the defendant’s intent to retaliate against the
prisoner for his or her exercise of that right, (3) a retaliatory adverse act, and
(4) causation.” Morris v. Powell, 449 F.3d 682, 684 (5th Cir. 2006). Retaliation
“is actionable only if it is capable of deterring a person of ordinary firmness
from further exercising his constitutional rights.” Id. at 686. To establish an
intent to retaliate, an “inmate must produce direct evidence of motivation or,
the more probable scenario, allege a chronology of events from which
retaliation may plausibly be inferred.” Woods v. Smith, 60 F.3d 1161, 1166 (5th
Cir. 1995) (quotation marks omitted). To satisfy the causation element, a
prisoner must show that the adverse act would not have occurred “but for the
retaliatory motive.” McDonald v. Steward, 132 F.3d 225, 231 (5th Cir. 1998).
      Many of Garner’s claims of retaliation involved actions allegedly taken
by defendant Walden, but Garner dismissed Walden as a defendant. In
addition, to the extent Garner is arguing that the remaining defendants should
be subject to supervisory liability for Walden’s actions, there generally is no
vicarious supervisory liability in a Section 1983 case. Thompkins v. Belt, 828
F.2d 298, 303 (5th Cir. 1987).
      The district court concluded that threats to deny Garner law library
access on two specific occasions in April and June 2009 were de minimis and


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insufficient to establish a valid retaliation claim. Garner does not allege that
he actually was denied access on either date or that the threats dissuaded him
from seeking library access in the future. Mere threats do not amount to a
constitutional violation. See Bender v. Brumley, 1 F.3d 271, 274 n.4 (5th Cir.
1993); McFadden v. Lucas, 713 F.2d 143, 146 (5th Cir. 1983). Garner has not
shown that the district court plainly erred in finding that these threats were
de minimis and not actionable in a Section 1983 proceeding. See Morris, 449
F.3d at 686; Bender, 1 F.3d at 274 n.4; Puckett, 556 U.S. at 135.
      Garner also asserted that the defendants denied him law library access
on multiple occasions in May, June, and July 2009. The district court found
Garner had alleged that Moore’s motivation for denying him access to the law
library was her anger over a July 2007 court hearing. Because of the nearly
two-year delay between the July 2007 hearing and the allegedly retaliatory
denial of access to the law library, which began in April 2009, the district court
found that retaliatory intent could not be plausibly inferred, nor could it be
shown that a retaliatory intent was the cause of the denial of access. On
appeal, Garner argues the July 2007 hearing was the initial motivation for
retaliation, but it was his subsequent grievances and threats to file a lawsuit
that caused the retaliation to continue.
      Although Walden allegedly made statements that suggest he had
retaliatory intent, Garner did not allege that any similarly direct statements
were made by any of the remaining defendants. To the extent Garner asserted
that the alleged retaliation in 2009 was motivated by the July 2007 hearing, he
has not shown the district court plainly erred in finding that he failed to
establish “a chronology of events from which retaliation may plausibly be
inferred.” Woods, 60 F.3d at 1166. Garner also argues that the defendants
denied him law library access in retaliation for his continued filing of


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grievances and threats to file suit.         Given that Garner filed grievances
beginning on April 30, 2009, and he allegedly was denied law library access
beginning on May 3, 2009, he arguably has shown a chronology of events from
which retaliation may be inferred. Still, Garner’s grievance records show that
access was denied because he failed to fill out his request forms properly.
Because Garner failed to establish that any retaliatory intent was the “but for”
cause of the alleged denial of access to the law library, the district court did not
plainly err in finding that he had not established a valid claim of retaliation.
See McDonald, 132 F.3d at 231; Puckett, 556 U.S. at 135.
      Garner next claimed that during a lockdown period from December 2009
to January 2010, the defendants retaliated against him by failing to timely
fulfill his requests for indigent supplies and legal materials. The district court
concluded that Garner eventually received everything he had requested and
that mere delay in the receipt of the requested supplies was de minimis
because such action would not deter a person of ordinary firmness from
exercising their rights.     On appeal, Garner presents only conclusional
assertions and distinguishable cases to argue that these delays were more than
de minimis. He has not shown that the district court plainly erred in finding
that these delays were de minimis. See Morris, 449 F.3d at 686; Puckett, 556
U.S. at 135.
      The district court also found that many of Garner’s requests were
improperly made: Garner often failed to provide the required justification for
additional indigent supplies, made multiple requests on a single form, or
signed his name incorrectly. Because his failure to properly complete request
forms explained the failure to receive some supplies in a timely manner, the
district court concluded Garner had not shown that a retaliatory intent was the
cause of the delays. The evidence in the record shows that Garner’s failure to


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properly fill out request forms caused delays in his receipt of requested
materials. Therefore, he has not established that the district court plainly
erred in finding that he had not shown any alleged retaliatory intent caused
the delay in his receipt of supplies. See Puckett, 556 U.S. at 135.
      Based on its conclusion that Garner lacked standing to bring his claim of
denial of access to the courts, the district court did not consider this claim on
the merits. Although the finding that Garner lacked standing constituted an
error that was plain, to obtain relief, Garner must also show that this error
affected his substantial rights. Puckett, 556 U.S. at 135. To prevail on a claim
for denial of access to the courts, Garner must demonstrate that he suffered
actual harm, such as the dismissal of a complaint for failure to meet a technical
requirement or the complete inability to file a complaint. See Lewis v. Casey,
518 U.S. 343, 349, 351 (1996). Because Garner failed to show that he suffered
actual harm as a result of any alleged denial of access to the courts, the error
in finding that he lacked standing to bring such a claim did not affect his
substantial rights. See Puckett, 556 U.S. at 135; Lewis, 518 U.S. at 349.
      AFFIRMED.




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