Case: 10-10332 Document: 00511303649 Page: 1 Date Filed: 11/24/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 24, 2010
No. 10-10332
Summary Calendar Lyle W. Cayce
Clerk
KENNETH ALDEN LOCKAMY,
Plaintiff-Appellant,
versus
STEVIE RODRIGUEZ, Officer; GARY PERRY, Officer;
JERRY SERRANO, Officer; BLENDIA YOUNG, Officer;
RODRIGUEZ 12:20, Officer; JOSE LERMA, Officer;
FREDRICK GONZALES, Officer; EUGENE WEITMAN, Officer;
ROBERT REMERO, Officer; EVONNE SAPP, Officer;
GOLDIE MCCOLLOUGH, Officer; SAMUEL AGUILAR, Officer;
RICKY RODRIGUEZ,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Texas
No. 5:08-CV-21
Case: 10-10332 Document: 00511303649 Page: 2 Date Filed: 11/24/2010
No. 10-10332
Before DAVIS, SMITH, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Kenneth Lockamy, Texas prisoner # 1313595, appeals a summary judg-
ment in his 42 U.S.C. § 1983 civil suit in which he claimed that prison officials
had violated his Eighth Amendment right against cruel and unusual punish-
ment by depriving him of six meals over a 54-hour period. Lockamy contends
that the district court erred in concluding that he had not alleged that he suf-
fered any adverse physical effects from missing any meals and had failed to state
a claim of retaliation.
A summary judgment is reviewed de novo. Berquist v. Wash. Mut. Bank,
500 F.3d 344, 348 (5th Cir. 2007). This court views all facts and evidence in the
light most favorable to the non-moving party. United Fire & Cas. Co. v. Hixson
Bros, 456 F.3d 283, 285 (5th Cir. 2006). If a motion for summary judgment is
properly supported, the opposing party “may not rely merely on allegations or
denials in its own pleadings” but must, in its response, “set out specific facts
showing a genuine issue for trial.”1 This court views all facts and evidence in the
light most favorable to the non-moving party. United Fire & Cas. Co. v. Hixson
Bros, 456 F.3d 283, 285 (5th Cir. 2006). Even if we disagree with the reasons
given by the district court to support summary judgment, we “may affirm the
district court’s ruling on any grounds supported by the record.” Berquist, 500
F.3d at 349.
“Prison officials have a constitutional obligation to provide reasonably ade-
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
1
Rule 56(e)(2); see also Hathaway v. Bazany, 507 F.3d 312, 319 (5th Cir. 2007) (noting
that a nonmovant cannot satisfy his summary judgment burden “with conclusory allegations,
unsubstantiated assertions, or only a scintilla of evidence”) (internal quotation marks and cita-
tions omitted).
2
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No. 10-10332
quate food” to inmates.2 To state an Eighth Amendment claim, Lockamy must
show that the conditions were “so serious as to deprive him of the minimal mea-
sure of life’s necessities, as when denied some basic human need.” Berry, 192
F.3d at 507. He also must show that prison officials acted with deliberate indif-
ference, such that the officials were aware of facts from which an inference of the
substantial risk of serious harm could be drawn and that the officials actually
drew this inference. See Farmer v. Brennan, 511 U.S. 825, 834, 837 (1994).
Courts consider the amount and duration of the deprivation of food in determin-
ing whether a constitutional right has been infringed and have recognized that
the provision of two meals a day may be adequate to meet the minimal measure
of life’s necessities. Berry, 192 F.3d at 507.
In Berry, we held that the deprivation of eight meals over a seven-month
period did not deprive an inmate of the minimal measure of life’s necessities. Id.
at 506-08. We concluded that Berry’s allegations did not rise to the level of an
Eighth Amendment violation. because he had not alleged specific physical harm,
other than hunger pains. Id. at 508. Nor had he alleged that he suffered weight
loss, other adverse physical effects, or health risks or that he was denied a “nu-
tritionally and calorically adequate diet.” Id.
The district court, relying on Berry, concluded that although there was a
fact issue regarding whether Lockamy had been deprived of every meal during
the 54-hour period, he still had failed to state an Eighth Amendment claim, be-
cause he had not alleged that he suffered physical injury as a result of missing
any meals. Lockamy contends that his assertion that he had caused two self-in-
flicted injuries as a result of being deprived food was sufficient to allege a physi-
cal injury. His summary judgment evidence, however, did not include any facts
or medical evidence from which the district court could conclude that any alleged
2
Eason v. Thaler, 14 F.3d 8, 10 (5th Cir. 1994) (footnotes omitted); see Berry v. Brady,
192 F.3d 504, 507 (5th Cir. 1999) (recognizing that inmates should be provided with balanced
meals that have sufficient nutritional value to maintain health).
3
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No. 10-10332
deprivation of food was the actual cause of his self-inflicted wounds. In fact, he
acknowledged that he had a well-documented history of causing harm to himself
that predated the events surrounding this case. His unsubstantiated assertion
that he harmed himself because he was deprived of food cannot satisfy the
summary judgment burden. See Hathaway, 507 F.3d at 319.
To state a retaliation claim, “a prisoner must allege (1) a specific constitu-
tional 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.” Jones
v. Greninger, 188 F.3d 322, 324-25 (5th Cir. 1999). After showing invocation of
a constitutional right, the prisoner must “produce direct evidence of motivation”
or “allege a chronology of events from which retaliation may plausibly be in-
ferred.” Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995) (internal quotation
marks and citations omitted). Furthermore, the retaliatory adverse act must be
more than de minimis to state a viable retaliation claim; the act must be “capa-
ble of deterring a person of ordinary firmness from further exercising his consti-
tutional rights.” Morris v. Powell, 449 F.3d 682, 686 (5th Cir. 2006).
Lockamy provides no concrete evidence to establish that any acts of food
deprivation were directly motivated by retaliation. In addition, he fails to pro-
duce a chronology of events from which retaliation could be plausibly inferred.
His speculation that officers maliciously deprived him of food as a result of a
campaign of retaliation is not enough to state a constitutional claim. See Woods,
60 F.3d at 1166. Moreover, his personal belief that he was the victim of retalia-
tion is not sufficient to support a retaliation claim. Jones, 188 F.3d at 325. An
effort to show of retaliation places a heavy burden on prisoners, and mere con-
clusional allegations are not enough.3 Accordingly, the judgment is AFFIRMED.
3
Woods, 60 F.3d at 1166; see also Al-Ra’id v. Ingle, 69 F.3d 28, 32 (5th Cir. 1995) (stat-
ing that conclusory allegations of malice are not sufficient to maintain a retaliation claim).
4