UNITED STATES COURT OF APPEALS
For the Fifth Circuit
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No. 95-40804
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ERIC ANTONIO HOWARD,
Plaintiff-Appellant,
VERSUS
KENNETH SPARKS, ET. AL,
Defendants-Appellees.
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Appeal from the United States District Court
for the Eastern District of Texas
(5:94-CV-69)
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December 10, 1996
Before GARWOOD, DAVIS, STEWART, Circuit Judges.
DAVIS, Circuit Judge:1
Appellant, Eric Antonio Howard, an inmate in the custody of
the Texas Department of Criminal Justice, challenges the dismissal
of his § 1983 action pursuant to 28 U.S.C. § 1915. We affirm.
I.
In March of 1994, Howard wrote three letters from his unit at
the Texas Department of Criminal Justice to three inmates who were
confined in the Titus County Jail. The letters concerned Howard’s
pending pro se lawsuit against Titus County officials, including
1
Pursuant to Local Rule 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.
appellees Kenneth Sparks, Charles Bailey, Linda Hammond, and Jim
Bayuk, for alleged violations during his arrest and confinement at
the Titus County jail. Two of these letters were addressed to
Titus County inmates who Howard intended to call as witnesses in
the action and included questions he intended to ask these
witnesses at trial. The third letter was addressed to an inmate
Howard was assisting with legal claims and contained advice
relating to that inmate’s claims. It is undisputed that these
letters contained no threats, escape plans, or discussion of
criminal activities and posed no danger.
Howard alleges that these letters were seized by officials at
the Titus County Jail, photocopied, and mailed to appellee Kenneth
Sparks, a defendant in the pending civil action. Sparks confirmed
that the three letters were provided to his attorneys, who
ultimately disclosed the letters in the pending action pursuant to
the Civil Justice and Expense Delay Reduction Plan of the United
States District Court for the Eastern District of Texas.
Howard contends that his First and Fourteenth Amendment rights
of free speech and access to the courts were violated when
appellees seized, photocopied, and distributed to opposing counsel
the letters he wrote to his potential witness. The district court
adopted the report and recommendation of the magistrate judge,
which determined that Howard failed to assert a violation of a
recognized constitutional right and failed to demonstrate any harm
resulting from the treatment of his mail. Accordingly, the
district court granted summary judgment in favor of appellees.
2
II.
We review the district court’s grant of summary judgment de
novo. Brewer v. Williams, 3 F.3d 816, 819 (5th Cir. 1993), cert.
denied 114 S.Ct. 1081 (1994). A party seeking summary judgment
bears the initial burden of identifying those portions of the
record, including any affidavits, that demonstrate the absence of
a genuine issue of material fact. Celotex v. Catrett, 477 U.S.
317, 325 (1986). Once the movant carries its burden, the burden
shifts to the non-movant to show that summary judgment should not
be granted. Id. at 324-25. The non-movant may not rest on mere
allegations or denials in its pleadings but must set forth specific
facts showing the existence of a genuine issue for trial. Anderson
v. Liberty Lobby, 477 U.S. 242, 256 (1986).
In response to Howard’s allegations, appellee Rex Mars, the
head jailer at the Titus County Jail, certified by affidavit that
no official at the jail searched, seized, and/or photocopied the
letters in question. Furthermore, Mars added that, as head jailer,
he oversaw distribution of all mail at the jail and “would have
knowledge if this in fact had been done.” Likewise, appellee
Kenneth Sparks certified that he had “no personal knowledge of the
circumstances under which the letters were obtained” and “played no
role . . . in the alleged seizure.” Mars' affidavit placed the
ball squarely in Howard's court to come forward with evidence
establishing that appellees participated in coyping and
distributing the letters, the factual basis for Howard's suit. See
3
Woods v. Edwards, 51 F.3d 577, 583 (5th Cir. 1995) (citing Lozano
v. Smith, 718 F.2d 756, 768 (5th Cir. 1983)). Howard failed to
meet this burden. While it is clear that someone copied the
letters in question, Howard has not carried his burden of
establishing that appellees participated in these acts. Howard’s
only evidence linking appellees to this conduct is his statement
that he has a witness, Larry Elliot, that saw three of the
appellees “hold, possess, and read” the letters. However, Larry
Elliot’s affidavit makes no specific allegations concerning any of
the appellees. Rather, he merely states that he witnessed “several
incidents” related to the case, but “reserve[s] disclosure of these
issues until such time as proper."” These statements are
inadequate to raise a genuine issue of material fact that appellees
participated in the complained of conduct.2
III.
Howard has failed to satisfy his summary judgment burden of
showing that appellees participated in copying and distributing his
letters. Accordingly, the district court’s order granting summary
judgment in favor of appellees is affirmed.
AFFIRMED.
2
Because the summary judgment evidence does not establish
that appellees participated in the complained of conduct, we need
not decide whether that conduct would violate a right secured to
Howard under the Constitution.
4