Case: 12-40011 Document: 00512229693 Page: 1 Date Filed: 05/03/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 3, 2013
No. 12-40011
Summary Calendar Lyle W. Cayce
Clerk
JESSE P. SKINNER,
Plaintiff-Appellant
v.
TONY D’CUNHA, Individually and in his official capacity as Assistant Director;
FRANK HOKE, Individually and in his official capacity as Director; DAVID
SWEETIN, Individually and in his official capacity as Director; MARY KINSEL,
Individually and in her official capacity as Manager of Food Service; KERRY
LAND, Individually and his official capacity as Manager of Laundry Service;
GWENDOLYN SPURLOCK, Individually and in her official capacity as Law
Librarian; FLOYD HICKS, Individually and in his official capacity as
Investigator II; TOMMY GOODIN, Individually and in his official capacity as
Investigator III; RICK THALER, Individually and in his official capacity as
Director of the Texas Department of Criminal Justice,
Defendants-Appellees
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 9:09-CV-130
Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Case: 12-40011 Document: 00512229693 Page: 2 Date Filed: 05/03/2013
No. 12-40011
Jesse P. Skinner, Texas prisoner # 599362, filed a civil rights complaint,
pursuant to 42 U.S.C. § 1983, against the defendants alleging that they failed
to correct unconstitutional conditions of confinement in connection with prison
overcrowding, food service, laundry service, and recreation facilities. He also
alleged that he had been denied access to courts, denied redress of his
complaints, the victim of retaliation, and denied access to restroom facilities in
violation of the Equal Protection Clause. The district court granted the
defendants’ motion for summary judgment. Skinner now appeals.
In his first argument, Skinner contends that the magistrate judge (MJ)
and the district court violated his substantial rights by not serving him with a
copy of the MJ’s report and recommendation. He contends that because he did
not receive a copy of the report and recommendation, he was not afforded an
opportunity to file objections and lost the right to de novo review. He also
asserts that the MJ violated his substantial rights because he was not served
with a copy of the amended scheduling order.
Whether the district court failed to provide Skinner with a copy of the MJ’s
report and the opportunity to respond need not be resolved. Skinner has not
identified any factual dispute or legal contention that he could have raised in the
district court that would have prevented dismissal, so any error was harmless.
See Braxton v. Estelle, 641 F.2d 392, 397 (5th Cir. 1981). Similarly, he does not
elaborate how he was harmed by the MJ’s failure in providing him with a copy
of the amended scheduling order. Accordingly, any error in Skinner not
receiving orders from the MJ or district court was harmless and does not require
reversal. See id.
Also, Skinner contends that the district court abused its discretion in
denying his motion to compel, his motion for Federal Rule of Civil Procedure 11
sanctions, and his motion to conduct limited discovery. The denial of Rule 11
sanctions and a district court’s decision regarding discovery matters are
reviewed for an abuse of discretion. Fielding v. Hubert Burda Media, Inc., 415
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No. 12-40011
F.3d 419, 428 (5th Cir. 2005); Tompkins v. Cyr, 202 F.3d 770, 787 (5th Cir. 2000).
Skinner does not explain why his discovery motions or Rule 11 sanctions were
warranted. He also does not identify any specific wrongdoing or court error in
regard to the district court’s decisions denying his motions. Skinner thus has
waived any appeal of this issue. See Brinkmann v. Dallas County Deputy Sheriff
Abner, 813 F.2d 744, 748 (5th Cir. 1987).
Skinner further contends that the district court abused its discretion in
denying his motion to recuse. However, there is no indication in the record of,
nor has Skinner offered any evidence of, bias or prejudice on the part of the MJ
or district court judge. See Andrade v. Chojnacki, 338 F.3d 448, 454 (5th Cir.
2003). Accordingly, the district court did not abuse its discretion in denying
Skinner’s motion to recuse. See Trevino v. Johnson, 168 F.3d 173, 178 (5th Cir.
1999).
We review de novo Skinner’s challenge to the district court’s grant of the
defendants’ motion for summary judgment. See Nickell v. Beau View of Biloxi,
L.L.C., 636 F.3d 752, 754 (5th Cir. 2011). “The court shall grant summary
judgment if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” FED.
R. CIV. P. 56(a). However, when, as here, the defendants have asserted qualified
immunity in a summary judgment motion, “the burden then shifts to the
plaintiff, who must rebut the defense by establishing a genuine fact issue as to
whether the official’s allegedly wrongful conduct violated clearly established
law.” Brown v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010).
Skinner contends that the defendants failed to correct unconstitutional
conditions of confinement related to prison overcrowding, the denial of adequate
food, the denial of laundry necessities, and the denial of recreation facilities.
However, Skinner fails to brief specific details regarding his claims, nor does he
allege an actual injury as required for a § 1983 claim. He fails to challenge the
district court’s reasons for rejecting his claims and granting the defendants’
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motion for summary judgment. His conclusory assertions are insufficient to
establish a constitutional violation. See Koch v. Puckett, 907 F.2d 524, 530 (5th
Cir. 1990). The same is true for his claims that he has been denied equal access
to restroom facilities, the victim of retaliation, and denied access to courts. See
id. Further, Skinner does not brief his claim that he was denied redress of his
grievances or challenge the district court’s decision that his request for monetary
damages was barred by the Eleventh Amendment. He also does not challenge
the district court’s finding that the defendants are not liable for claims under a
theory of respondent superior. He has thus abandoned those claims before this
court. See Yohey v. Collins, 985 F.2d 222, 224-25 (1993); Brinkmann, 813 F.2d
at 748. Accordingly, the district court did not err in granting the defendants’
summary judgment motion with regard to Skinner’s § 1983 action. See Brown,
623 F.3d at 253.
Because Skinner did not timely appeal the denial of his motion for class
certification, we lack jurisdiction to consider that claim on appeal. See
McNamara v. Felderhof, 410 F.3d 277, 279-82 (5th Cir. 2005). The judgment of
the district court is therefore AFFIRMED in part and DISMISSED in part.
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