United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 9, 2006
Charles R. Fulbruge III
Clerk
No. 04-20905
Summary Calendar
GREGORY D. JOHNSON,
Plaintiff-Appellant,
versus
RONALD L. KELLY; L. GOLDEN; DAVID TURRUBIARTE; STEPHEN ALLEE;
ASSISTANT WARDEN GLENN SMITH; KEITH CLENDENNEN; MICHAEL LIGHTSEY;
BARBARA REED; KELLI WARD,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:02-CV-344
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Before KING, DAVIS, and OWEN, Circuit Judges.
PER CURIAM:*
Gregory D. Johnson, Texas inmate # 652074, appeals following
the summary judgment dismissal of his claims against Captain
Ronald Kelly, Major David Turrubiarte, Lieutenant Stephen Allee,
Warden Glenn Smith, Keith Clendennen, Michael Lightsey, Barbara
Reed, Kelli Ward, and Louise Golden. We affirm in part, vacate
in part, and remand for further proceedings on Johnson’s
retaliation claim against Captain Kelly.
*
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this opinion should not be published and is not precedent except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. 04-20905
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Johnson filed his verified complaint under 42 U.S.C. § 1983
following an incident on July 20, 2001. According to Johnson’s
allegations, he was accidentally exposed to Hi-Lite, a chemical-
based cleaning fluid, while working in the prison bakery.
Johnson and other workers were in a locked area of the kitchen
and were unable to summon help immediately. Captain Kelly
arrived at the scene an hour after the exposure and was informed
of what had occurred. He did not assist Johnson in obtaining
medical treatment but instead confiscated Johnson’s t-shirt,
which was soaking in a bucket of water.
Johnson was taken to the prison medical unit approximately
30 minutes later where he was met by Nurse Golden. He told Nurse
Golden about the exposure, informed her that he had chemical
allergies, and indicated that his eyes and skin were burning.
Nurse Golden assessed Johnson’s condition and determined that he
was not in need of treatment.
Johnson later developed physical manifestations of injury.
When he showed these to Captain Kelly on July 23, 2001, the two
argued about the events on the day of the exposure, and Johnson
indicated that he was going to file a grievance regarding the
exposure incident. Captain Kelly then filed an offense report
charging that Johnson had made unauthorized use of state property
by soaking his t-shirt in the bucket.
No. 04-20905
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This court reviews de novo the district court’s grant of
summary judgment. Cousin v. Small, 325 F.3d 627, 637 (5th Cir.
2003). We evaluate the facts in the light most favorable to the
nonmoving party. Todd v. AIG Life Ins. Co., 47 F.3d 1448, 1451
(5th Cir. 1995).
Johnson argues that the district court erred in granting
summary judgment on his claim that Captain Kelly, by locking
bakers in the kitchen where they lacked access to food service
security, restrooms, and emergency medical care, was deliberately
indifferent to unsafe prison conditions. “A prison official has
violated the Eighth Amendment when he 1) shows a subjective
deliberate indifference to 2) conditions posing a substantial
risk of serious harm to the inmate.” Gates v. Cook, 376 F.3d
323, 333 (5th Cir. 2004). In view of undisputed summary judgment
evidence showing that Johnson was trained regarding what to do in
the event of a chemical exposure, that he had access to a sink,
soap, and running water, and that he used these resources to
cleanse and rinse the affected areas, we conclude that the
district court did not err in granting summary judgment. See
Gates v. Cook, 376 F.3d 323, 333 (5th Cir. 2004).
Johnson also contends that the district court erred in
granting summary judgment in favor of Captain Kelly and Nurse
Golden on his claims that they were deliberately indifferent to
his serious medical needs. Prison officials violate the
constitutional prohibition against cruel and unusual punishment
No. 04-20905
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when they demonstrate deliberate indifference to a prisoner’s
serious medical needs, constituting an unnecessary and wanton
infliction of pain. Wilson v. Seiter, 501 U.S. 294, 297 (1991).
The competent summary judgment evidence includes an
affidavit from Dr. Larry Largent which establishes that Johnson
took appropriate actions to deal with the exposure by bathing and
rinsing the affected areas immediately after the exposure and
that this is the same treatment that would have been rendered by
medical personnel. Dr. Largent further averred that no further
treatment is usually warranted unless the patient develops
dermatitis. Johnson has pointed to no summary judgment evidence
showing that he had any visible signs of injury when he
encountered these defendants on the day of the exposure.
Accordingly, we affirm the grant of summery judgment on these
claims. See id. To the extent that Johnson challenges the
district court’s reliance on Dr. Largent’s affidavit, he has not
shown reversible error. See FED. R. CIV. P. 56(e).
Finally, Johnson argues that the district court erred in
granting summary judgment on his claim that Captain Kelly
retaliated against him by filing an offense report. “To state a
valid claim for retaliation under section 1983, a prisoner must
allege (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.”
Jones v. Greninger, 188 F.3d 322, 324-25 (5th Cir. 1999).
No. 04-20905
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The summary judgment evidence, which included Johnson’s
declaration submitted under penalty of perjury, shows that
Captain Kelly was aware of Johnson’s misuse of state property on
the date of the chemical exposure, July 20, 2001, but did not
file an offense report until the following Monday, July 23, 2001,
after Johnson had indicated that he would file a grievance
regarding the incident. Captain Kelly explained that he delayed
filing the offense report because the incident occurred after his
usual departure time. However, Captain Kelly’s delay arguably
violates the provisions of a handbook issued by the Texas
Department of Criminal Justice, which Johnson made a part of the
summary judgment record.
Credibility determinations are improper on a motion for
summary judgment. See Union Pac. Res. Group, Inc. v.
Rhone-Poulenc, Inc., 247 F.3d 574, 584 (5th Cir. 2001). Johnson
has raised a genuine issue of material fact as to whether Captain
Kelly had a retaliatory motive in filing an offense report based
on Johnson’s misuse of state property. Accordingly, we VACATE
the dismissal of the retaliation claim against Captain Kelly and
REMAND for further proceedings on this claim. See Woods v.
Smith, 60 F.3d 1161, 1166-67 (5th Cir. 1995); Jackson v. Cain,
864 F.2d 1235, 1249 (5th Cir. 1989). In so doing we express no
opinion as to the merit of the retaliation claim.
Johnson does not brief an argument that the district court
erred by granting summary judgment on any other claims.
No. 04-20905
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Therefore, any such challenge Johnson could have raised is deemed
to be waived. See Brinkmann v. Dallas County Deputy Sheriff
Abner, 813 F.2d 744, 748 (5th Cir. 1987).
AFFIRMED IN PART; VACATED AND REMANDED IN PART.