IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 5, 2009
No. 07-50674
Summary Calendar Charles R. Fulbruge III
Clerk
TIMOTHY J JAMES
Plaintiff-Appellant
v.
MARIA D RAMIREZ, Sergeant; GONZALO MARTINEZ, Correctional Officer;
KENNETH BRIGHT, Assistant Warden; JEFFERY MORTON, Assistant
Warden; RAYNALDO CASTRO, Warden II; TERRY RICHARDSON, Lieutenant;
GARY L CURRIE, Major
Defendants-Appellees
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:06-CV-287
Before DAVIS, GARZA and PRADO, Circuit Judges.
PER CURIAM:*
Timothy J. James, Texas prisoner # 848684, appeals the district court’s
dismissal of his 42 U.S.C. § 1983 civil rights complaint. The district court held
that the defendants were entitled to summary judgment on James’s deliberate
indifference claims and that the complaint otherwise had failed to state a claim.
See FED. R. CIV. P. 56; FED. R. CIV. P. 12(b)(6). James argues, as he did in the
*
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should not be published and is not precedent except under the limited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. 07-50674
district court, that he has pseudofolliculitis barbae (PFB), that he had been
issued a clipper shave pass (CSP) allowing him not to shave and to maintain a
1/4-inch beard, and that defendants were responsible for threatening him with
disciplinary sanctions if he did not shave on occasions, for falsely disciplining
him in February 2005 for not shaving, and for refusing to renew his CSP in
retaliation for his previous complaints.
James does not raise any issues on appeal with respect to the district
court’s dismissal of his claims against six defendants for failure to effect timely
service and failure to prosecute. Therefore, any issues pertaining to the
dismissal of his claims against those defendants are waived. See Brinkmann v.
Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).
We review the grant of summary judgment de novo. See Hernandez v.
Velasquez, 522 F.3d 556, 560 (5th Cir. 2008). “[T]he party moving for summary
judgment must ‘demonstrate the absence of a genuine issue of material fact,’ but
need not negate the elements of the nonmovant’s case.” Little v. Liquid Air
Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (quoting Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986)). If the moving party meets the initial burden
of showing that there is no genuine issue, the burden shifts to the nonmovant to
set forth specific facts showing the existence of a genuine issue for trial. Rule
56(e). The nonmovant cannot satisfy his summary judgment burden with
conclusional allegations, unsubstantiated assertions, or only a scintilla of
evidence. Little, 37 F.3d at 1075.
This court reviews a dismissal under Rule 12(b)(6) de novo. Kennedy v.
Chase Manhattan Bank USA, NA, 369 F.3d 833, 839 (5th Cir. 2004). This “court
accepts all well-pleaded facts as true, viewing them in the light most favorable
to the plaintiff.” In re Katrina Canal Breaches Litigation, 495 F.3d 191, 205 (5th
Cir. 2007) (internal quotation marks and citation omitted), cert. denied, 128 S.
Ct. 1230, and cert. denied, 128 S. Ct. 1231 (2008).
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No. 07-50674
James argues that the district court, in ruling on summary judgment,
improperly relied on the Merck Manual, an online medical library, and the
unpublished decision in Turner v. Buckmaster, No. 90-15855, 1992 WL 57430 at
* 2 (9th Cir. Mar. 25, 1992) (unpublished). James does not challenge the Merck
Manual’s description of PFB or challenge Turner’s holding as set forth by the
district court. Even if the district court erred in relying on either source, any
error was harmless because this court may “affirm a grant of summary judgment
on any grounds supported by the record and presented to the court below.”
Hernandez, 522 F.3d at 560.
A plaintiff alleging deliberate indifference to serious medical needs “must
prove objectively that he was exposed to a substantial risk of serious harm” and
that the defendants “acted or failed to act with deliberate indifference to that
risk.” Lawson v. Dallas County, 286 F.3d 257, 262 (5th Cir. 2002). James
argues that the disciplinary case of February 2005 and several unspecified
grievances raise genuine fact issues as to the issue of deliberate indifference. As
the district court reasoned, James’s challenge to the February 2005 disciplinary
proceeding is unsupported by the record; the record reflects that James was
disciplined for failing to maintain a 1/4 inch beard and not because he failed to
shave to the skin level.
James has identified nothing in the record beyond his own allegations
suggesting that PFB was a serious medical condition or that his condition was
serious. See Wilson v. Seiter, 501 U.S. 294, 297 (1991); Lawson, 286 F.3d at 262.
James had the burden of proving that he “was exposed to a substantial risk of
serious harm.” Lawson, 286 F.3d at 262. James’s unsubstantiated assertions
that he was exposed to such risk were not sufficient to meet his summary
judgment burden. See Little, 37 F.3d at 1075.
James’s claim that he was denied a CSP in retaliation for filing grievances
is unavailing because it is conclusional. Even if evidence in the record reflected
that the defendants were personally involved in the alleged retaliatory acts of
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No. 07-50674
Nurse Stansbury, James failed to identify direct evidence of motivation or “allege
a chronology of events from which retaliation may plausibly be inferred.” Woods
v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995) (internal quotation marks and
citation omitted).
The district court’s judgment is AFFIRMED.
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