Walzier v. McMullen , 333 F. App'x 848 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 17, 2009
No. 08-20195
Summary Calendar Charles R. Fulbruge III
Clerk
VANCE WALZIER
Plaintiff-Appellant
v.
MCMULLEN, Lieutenant; GARCIA; Captain; HERNANDEZ, CO IV; RAMIREZ,
CO IV; MCBRIDE, CO IV; CORRETHERS, CO IV; GLAZE, CO IV; FLORES, CO
IV
Defendants-Appellees
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:06-CV-2361
Before SMITH, STEWART and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Vance Walzier, Texas prisoner # 709706 appeals the dismissal of his pro
se, in forma pauperis (IFP) civil rights complaint against officials at the Texas
Department of Criminal Justice. Walzier’s motion for oral argument is denied.
The district court did not abuse its discretion when it dismissed as frivolous
under 28 U.S.C. § 1915(e)(2)(B) Walzier’s medical care claims because they
amounted to claims of negligence. See Harper v. Showers, 174 F.3d 716, 718 (5th
*
Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
No. 08-20195
Cir. 1999); Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991). Nor did the
district court abuse its discretion in dismissing as frivolous Walzier’s claim that
Defendants Hernandez, Ramirez, McBride, Correthers, Glaze, and Flores
retaliated against him for filing grievances against other officers because
Walzier failed to point to a specific constitutional right that these defendants
violated. See Jones v. Greninger, 188 F.3d 322, 325 (5th Cir. 1999). Because
Walzier does not brief the district court’s dismissal of his claim against Captain
Garcia, he has abandoned any appellate argument regarding the same. See
Hughes v. Johnson, 191 F. 3d 607, 613 (5th Cir. 1993).
Walzier argues that the district court erred when it granted summary
judgment for Lieutenant McMullen. We review the grant of a motion for
summary judgment de novo. Hinojosa v. Butler, 547 F.3d 285, 295 (5th Cir.
2008). We will affirm a summary judgment if “‘there is no genuine issue as to
any material fact’ and the moving party is ‘entitled to judgment as a matter of
law.’” Id. (quoting F ED. R. C IV. P. 56(c)). We view the evidence and the
inferences from the record in the light most favorable to the nonmovant. Id.(citation and internal quotation marks omitted).
“Qualified immunity protects government officials ‘from liability for civil
damages insofar as their conduct does not violate clearly established statutory
or constitutional rights of which a reasonable person would have known.’” Lytle
v. Bexar County, Tex., 560 F.3d 404, 409 (5th Cir. 2009) (quoting Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982)). Whether a government official is entitled
to qualified immunity for an alleged constitutional violation is determined by the
two-step analysis of Saucier v. Katz, 533 U.S. 194 (2001), overruled in part by
Pearson v. Callahan, 129 S. Ct. 808 (2009). Lytle, 560 F.3d at 409.
The threshold constitutional violation question is “whether, taking the
facts in the light most favorable to the plaintiff, the officer’s alleged conduct
violated a constitutional right.” Id. at 410 (citing Saucier, 533 U.S. at 201). If
the court determines that there was a constitutional violation, the court moves
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No. 08-20195
to the second step, which involves “determining whether the law was sufficiently
clear that a reasonable officer would have known that his conduct violated the
constitution. Id. Stated another way, the court asks “whether the law lacked
such clarity that it would be reasonable for an officer to erroneously believe that
his conduct was reasonable.” Id.
The summary judgment evidence establishes that Walzier does not have
Hepatitis C or AIDS, diseases he alleges were the result of contaminated food
served to him after Lieutenant McMullen labeled him a snitch. Walzier fails to
show that Lieutenant McMullen violated the Eighth Amendment in failing to
protect Walzier. The summary judgment evidence reflects that Walzier
instigated altercations with other inmates and that he has no health problems
related to the food he was served. Absent a showing that other inmates harmed
Walzier, there is no factual basis for a failure to protect claim. See Farmer v.
Brennan, 511 U.S. 825, 833 (1994); Adames v. Perez, 331 F.3d 508, 512 (5th Cir.
2003).
Nor can Walzier show a constitutional violation with respect to his claim
that McMullen retaliated against him. Given that the summary judgment
evidence establishes a clean bill of health for Walzier, he fails to show that he
suffered more than de minimis retaliation. See Morris v. Powell, 449 F.3d 682,
684 (5th Cir. 2008). Thus, the district court did not err when it granted
summary judgment for Lieutenant McMullen. Additionally, because Walzier
cannot show the denial of a constitutional right, his claim for nominal damages
fails. See Mayfield v. Texas Dept. of Criminal Justice, 529 F.3d 599, 606 (5th Cir.
2008) (noting that a prisoner can, absent a showing of physical injury, pursue
punitive or nominal damages based upon a violation of his constitutional rights).
This court need not address Walzier’s claim that his due process rights
were violated because of his status as a writ writer because he raises it for the
first time on appeal. See Stewart Glass & Mirror, Inc. v. U.S. Auto Glass
Discount Centers, Inc., 200 F.3d 307, 316-17 (5th Cir. 2000). Walzier’s argument
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No. 08-20195
that the district court could not order him to supply more specific facts to
support his claims after Lieutenant McMullen alleged qualified immunity is
unavailing. See Anderson v. Pasadena Indep. Sch. Dist., 184 F.3d 439, 443 (5th
Cir. 1999). Nor was Walzier entitled to discovery on McMullen’s qualified
immunity defense. See Harlow v. Fitzgerald, 457 U.S. 800, 817-18 (1982);
Jacquez v. Procunier, 801 F.2d 789, 791 (5th Cir. 1986).
Walzier argues that the district court erred when it dismissed his claims
that the defendants conspired to deprive him of his Eighth and Fourteenth
Amendment rights. Walzier’s district court filings arguably alleged a claim that
the defendants conspired to serve him tainted food and ignored his symptoms
because he had filed grievances. The district court, however, did not identify a
conspiracy claim. Even if the district court had done so, Walzier was not entitled
to § 1983 relief for conspiracy. To establish a conspiracy claim under § 1983,
Walzier had to show an actual violation of § 1983 and the defendants’ agreement
to commit an illegal act. See Hale v. Townley, 45 F.3d 914, 920 (5th Cir. 1995);
Arsenaux v. Roberts, 726 F.2d 1022, 1024 (5th Cir. 1982). As the preceding
discussion indicates, Walzier’s allegations of a constitutional violation were
either frivolous or subject to summary judgment.
The district court did not abuse its discretion when it denied Walzier’s
motion to file a second supplemental complaint. See Burns v. Exxon Corp., 158
F.3d 336, 343 (5th Cir. 1998). Walzier sought to add additional claims and
defendants when he had already been granted ample time and the means to do
so and he appeared to be abusing the judicial process. See Boudwin v. Graystone
Ins. Co., 756 F.2d 399, 401 (5th Cir. 1985).
The judgment of the district court is affirmed. This court’s affirmance of
the district court’s dismissal of certain of Walzier’s claims as frivolous counts as
a strike for purposes of 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103
F.3d 383, 387 (5th Cir. 1996). Walzier is warned that if he accumulates three
strikes, he may not proceed IFP in any civil action or appeal filed while he is
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No. 08-20195
incarcerated or detained in any facility unless he is under imminent danger of
serious physical injury. See § 1915(g).
AFFIRMED; MOTION DENIED; SANCTION WARNING ISSUED.
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