Case: 11-40220 Document: 00511844178 Page: 1 Date Filed: 05/03/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 3, 2012
No. 11-40220
Summary Calendar Lyle W. Cayce
Clerk
ROBERT CHARLES MORRIS,
Plaintiff-Appellant
v.
ELIZABETH E. CROSS; CHRIS W. AGAPIOU; SHERRI L. MILLIGAN;
ROBERT HERRERA; CHRISTY M. HOISINGTON; SUSAN BAUER; WILLIAM
STEPHENS; NATHANIEL QUARTERMAN,
Defendants-Appellees
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:09-CV-236
Before HIGGINBOTHAM, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
Robert Charles Morris, Texas prisoner # 1311083, appeals the district
court’s dismissal of his 42 U.S.C. § 1983 complaint pursuant to 28 U.S.C.
§ 1915A(b)(1) and Rule 56 of the Federal Rules of Civil Procedure. In his civil
rights complaint, he asserted that in February 2009, defendants Elizabeth E.
Cross, Chris W. Agapiou, and Sherri L. Milligan retaliated against him for filing
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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No. 11-40220
a state lawsuit against Milligan by seizing some of his personal property during
a shakedown search. He maintained that the other defendants failed to conduct
adequate investigations into his grievances, denied him relief on his grievances,
and failed to respond to letters he wrote pertaining to the search and seizure of
his property.
On appeal, Morris contends that the district court erred in granting
summary judgment in favor of Cross, Agapiou, and Milligan on his retaliation
claim. In order to state a valid retaliation claim, he must prove (1) his
invocation of a specific constitutional right, (2) the defendants’ intent to retaliate
against him for exercising that right, (3) a retaliatory adverse act, and
(4) causation. Jones v. Greninger, 188 F.3d 322, 324-25 (5th Cir. 1999). Morris
has failed to “establish that but for the retaliatory motive,” his property would
not have been seized. Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995).
Because Morris failed to show a constitutional violation, the district court
properly concluded that Cross, Agapiou, and Milligan were entitled to qualified
immunity. See Ontiveros v. City of Rosenberg, Tex., 564 F.3d 379, 382 (5th Cir.
2009). In the absence of a “genuine dispute as to any material fact,” the district
court properly granted summary judgment. FED. R. CIV. P. 56.
Morris contends that the district court should not have dismissed
defendant Christy Hoisington from suit because her failure to conduct an
adequate investigation into his grievance implicates due process. He is incorrect
in this assertion, because he lacks a protected interest in a favorable resolution
to his grievances. See Geiger v. Jowers, 404 F.3d 371, 374 (5th Cir. 2005). This
claim lacks a legal or factual basis, and the district court properly dismissed it
pursuant to § 1915A(b)(i). See Martin v. Scott, 156 F.3d 578, 580 (5th Cir. 1998).
Because Morris does not challenge the district court’s dismissal of the other
named defendants under § 1915A, such claims are abandoned. Brinkmann v.
Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).
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The district court concluded that claims raised by Morris relating to
incidents that occurred in January 2010 should be dismissed without prejudice
because Morris had failed to exhaust his administrative remedies at the time he
raised the allegations. See 42 U.S.C. § 1997e(a). On appeal, Morris asserts that
the district court should have considered the January 2010 incidents as a
continuation of the February 2009 retaliatory actions. Section 1997e(a)
mandates exhaustion of all administrative remedies prior to the filing of a § 1983
action. Booth v. Churner, 532 U.S. 731, 733-34 (2001); Wright v. Hollingsworth,
260 F.3d 357, 358 (5th Cir. 2001). As Morris does not dispute that he had not
exhausted his remedies at the time he attempted to add the January 2010 claims
to his case, the district court did not err in dismissing these allegations without
prejudice. See Booth, 532 U.S. at 741 n.6.
Morris also contends that the district court erred in denying him discovery
before granting summary judgment. He also maintains that the district court
should have held an immediate hearing on his motion for an immediate court
order, in which he asserted that prison officials had transferred him to a
different prison unit solely to separate him from his proposed witnesses and
render him unable to obtain affidavits. Because the defendants raised qualified
immunity, Morris was not entitled to proceed with discovery, and the evidence
that he proposes that he would have discovered or presented would not have
created a genuine issue of material fact. See Heitschmidt v. City of Houston, 161
F.3d 834, 840 (5th Cir. 1998); Rule 56(a). Additionally, Morris asserts that the
magistrate judge abused her discretion by refusing to accept documentary
evidence at a Spears1 hearing. However, his proposed evidence would not have
presented a genuine dispute as to the fact of causation for his retaliation claim
and would not have shown that he had exhausted his administrative remedies
relating to the January 2010 incidents. Therefore, the district court and
1
Spears v. MCcotter, 766 F.2d 179 (5th Cir. 1985).
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magistrate judge did not abuse their discretion in denying his claims relating to
discovery. See King v. Dogan, 31 F.3d 344, 346 (5th Cir. 1994).
Morris has not established that the district court erred in denying relief
on his § 1983 claims. Consequently, the judgment of the district court is
AFFIRMED. Morris’s request to strike the appellees’ brief for noncompliance
with the Federal Rules of Appellate Procedure and the Fifth Circuit Rules is
DENIED.
4