Derrick Scott v. Lonnie Nail ( 2015 )

Case: 14-30291 Document: 00512894776 Page: 1 Date Filed: 01/08/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-30291
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
January 8, 2015
DERRICK SCOTT,
Lyle W. Cayce
Clerk
Plaintiff-Appellant
v.
LONNIE NAIL; JAMIE FUSSELL; ANGIE HUFF; JAMES M. LEBLANC,
Defendants-Appellees
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 5:10-CV-1776
Before PRADO, OWEN, and GRAVES, Circuit Judges.
PER CURIAM: *
Derrick Scott, Louisiana prisoner # 126372, appeals the district court’s
grant of summary judgment for the defendants in this 42 U.S.C. § 1983 action.
Scott alleged that he had been denied due process during a prison disciplinary
proceeding when he was not allowed to call witnesses, that he was denied due
process because the prison disciplinary rule at issue failed to provide fair
warning that his conduct could result in a violation, and that the defendants’
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-30291
denial of his request to call witnesses was in retaliation for previous litigation
he had filed.
As an initial matter, Scott moved to strike the defendants’ brief or for an
extension of time to file a reply brief because he had not yet received a copy of
the defendants’ brief. Scott has submitted a proposed reply brief, which
indicates that he did receive the defendants’ brief; therefore, we deny his
motion to strike. However, Scott’s proposed reply brief was submitted almost
two weeks after it was due, making it untimely. See FED. R. APP. P. 31(a)(1).
Although Scott has requested an extension of time to file a reply, this court
“greatly disfavors all extensions of time for filing reply briefs.” 5TH CIR. R.
31.4.4. Scott’s proposed reply brief effectively repeats the substantive
arguments that he set forth in his primary brief. Because his reply brief would
not assist in the resolution of the instant appeal, the motion for an extension
of time to file a reply also is denied. See 5TH CIR. R. 31.4.4.
We review the district court’s summary judgment dismissal de novo,
under the same standards used by the district court. See Hernandez v. Yellow
Transp., Inc., 670 F.3d 644, 650 (5th Cir. 2012). “Summary judgment is proper
if the pleadings and evidence show there is no genuine issue of material fact
and the moving party is entitled to judgment as a matter of law.” Id.; see FED.
R. CIV. P. 56(a). We may affirm summary judgment on any ground evident in
the record. Jones v. Lowndes County, Miss., 678 F.3d 344, 348 (5th Cir. 2012).
A prisoner who seeks to invoke the Due Process Clause’s procedural
protections must establish that his life, liberty, or property is at stake.
Wilkinson v. Austin, 545 U.S. 209, 221 (2005). A prisoner’s protected liberty
interests are “generally limited to freedom from restraint which, while not
exceeding the sentence in such an unexpected manner as to give rise to
protection by the Due Process Clause of its own force, nonetheless imposes
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atypical and significant hardship on the inmate in relation to the ordinary
incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 484 (1995) (internal
citations omitted. In the instant case, Scott’s disciplinary conviction resulted
in ten days of disciplinary segregation. We have held that “administrative
segregation, without more, does not constitute a deprivation of a
constitutionally cognizable liberty interest.” Luken v. Scott, 71 F.3d 192, 193
(5th Cir. 1995). Because this punishment did not trigger due process
protections, Scott has not shown that his due process rights were violated. See
Harper v. Showers, 174 F.3d 716, 719 (5th Cir. 1999).
Scott also alleged that the defendants denied his request to call
witnesses in retaliation for his prior litigation activities, including suits filed
against these same defendants. A prison official may not retaliate against an
inmate for accessing the courts or using a prison grievance procedure. See
Gibbs v. King, 779 F.2d 1040, 1046 (5th Cir. 1986). To state a valid claim for
retaliation under § 1983, a prisoner must allege (1) his invocation of a specific
constitutional right, (2) the defendant’s intent to retaliate against the prisoner
due to his exercising that right, (3) a retaliatory adverse act, and (4) a causal
connection. Jones v. Greninger, 188 F.3d 322, 324-25 (5th Cir. 1999). Claims
of retaliation are regarded with skepticism and are carefully scrutinized by the
courts. Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995). Conclusional
assertions of retaliation are insufficient; to establish a claim for retaliation, a
prisoner must produce either direct evidence of retaliation or at least “allege a
chronology of events from which retaliation may plausibly be inferred.” See id.Although Scott presented some evidence of past litigation involving these
defendants, he failed to present evidence establishing the existence of a
genuine issue of material fact regarding whether these defendants were aware
of any litigation pending against them at the time of the disciplinary hearing.
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We also conclude that Scott has not shown that the refusal of his request to
call live witnesses at a disciplinary hearing constituted a retaliatory adverse
act sufficient to deter a person of ordinary firmness from exercising his or her
constitutional rights. See Morris v. Powell, 449 F.3d 682, 686 (5th Cir. 2006).
Finally, we conclude that Scott has not shown that the defendants had an
intent to retaliate against him by presenting direct evidence of retaliatory
intent or a chronology of events from which retaliation may plausibly be
inferred. See Woods, 60 F.3d at 1166.
AFFIRMED; MOTION TO STRIKE APPELLEES’ BRIEF DENIED;
MOTION FOR AN EXTENSION OF TIME TO FILE REPLY BRIEF DENIED.
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