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opinion should not be published and is not precedent except under the limited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.