Hines v. Marshall ( 2021 )

Case: 20-40444 Document: 00516038329 Page: 1 Date Filed: 10/01/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
October 1, 2021
No. 20-40444
Summary Calendar Lyle W. Cayce
Clerk
Kennie Hines,
Plaintiff—Appellant,
versus
Sean F. Marshall,
Respondent—Appellee.
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:18-CV-344
Before Southwick, Oldham, and Wilson, Circuit Judges.
Per Curiam:*
Kennie Hines, Texas prisoner # 1736823, appeals the summary
judgment dismissal of his 42 U.S.C. § 1983 complaint alleging retaliation by
Captain Sean F. Marshall. He contends that in response to his filing of
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 20-40444 Document: 00516038329 Page: 2 Date Filed: 10/01/2021
No. 20-40444
grievances, Marshall confiscated his property, instituted a disciplinary case
against him, and twice placed him into restrictive housing. We affirm.
As an initial matter, Hines has moved for appointment of counsel in
this appeal. This court may appoint counsel for an indigent plaintiff on
appeal if the plaintiff demonstrates that “exceptional circumstances”
warrant the appointment of counsel. Akasike v. Fitzpatrick, 26 F.3d 510, 512
(5th Cir. 1994) (per curiam); see also Cooper v. Sheriff, 929 F.2d 1078, 1084
(5th Cir. 1991) (per curiam) (considering “the type and complexity of the
case; the petitioner’s ability adequately to present and investigate his case;
the presence of evidence which largely consists of conflicting testimony so as
to require skill in presentation of evidence and in cross-examination; and the
likelihood that appointment will benefit the petitioner, the court, and the
defendants . . .” when deciding whether to appoint counsel (citation
omitted)). Hines has not demonstrated that his case presents the requisite
exceptional circumstances.
Moving to the substance of Hines’s appeal, we review the grant of
summary judgment de novo, applying the same standards as the district
court. Austin v. Kroger Tex., L.P., 864 F.3d 326, 328 (5th Cir. 2017). “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). All facts and reasonable
inferences must be construed in the light most favorable to the nonmovant,
and the court must not weigh evidence or make credibility determinations.
Deville v. Marcantel, 567 F.3d 156, 163–64 (5th Cir. 2009). However, the
nonmovant cannot satisfy his burden with “some metaphysical doubt as to
the material facts,” “conclusory allegations,” “unsubstantiated assertions,”
or “only a scintilla of evidence.” Duffie v. United States, 600 F.3d 362, 371
(5th Cir. 2010) (internal quotation marks and citation omitted).
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No. 20-40444
“To state a valid claim for retaliation under section 1983, a prisoner
must allege (1) a specific constitutional right, (2) the defendant’s intent to
retaliate against the prisoner for his or her exercise of that right, (3) a
retaliatory adverse act, and (4) causation.” Jones v. Greninger, 188 F.3d 322,
324–25 (5th Cir. 1999) (citation omitted). In the prison context, retaliation
claims are “regarded with skepticism,” and a prisoner raising such a claim
“must allege the violation of a specific constitutional right and be prepared
to establish that but for the retaliatory motive the complained of incident . . .
would not have occurred.” Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995)
(internal quotation marks and citation omitted). “The inmate must produce
direct evidence of motivation or, the more probable scenario, allege a
chronology of events from which retaliation may plausibly be inferred.” Id.(internal quotation marks and citation omitted).
Here, Hines’s complaint concerning the temporary deprivation of
several pieces of his property and the purported confiscation of a pair of
tennis shoes involves at most a de minimis injury insufficient to deter a person
of ordinary firmness from further exercising his constitutional rights. See
Morris v. Powell, 449 F.3d 682, 686 (5th Cir. 2006) (“Some acts . . . are so de
minimis that they would not deter the ordinary person from further exercise
of his rights. Such acts do not rise to the level of constitutional violations and
cannot form the basis of a § 1983 claim.”).
Further, Hines’s contention that Marshall initiated a disciplinary
action against him in response to his grievances is belied by the fact that the
action was predicated on Hines’s possession of a contraband watch. Hines
has failed to put forward evidence that would show that Marshall acted with
a retaliatory motive. See Woods, 60 F.3d at 1166.
Finally, Hines has failed to establish a genuine issue as to causation
with respect to his housing reassignments. The evidence shows that in the
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Case: 20-40444 Document: 00516038329 Page: 4 Date Filed: 10/01/2021
No. 20-40444
first instance, Marshall moved Hines to transient custody status to protect
both Hines and the investigation while Marshall addressed Hines’s grievance
that another guard engaged in sexually abusive behavior. And in the second
instance, Marshall had no input into the state classification committee’s
determination that Hines should be moved to administrative segregation
because of his extensive history of possessing weapons while in prison. Hines
has failed to point to evidence that would show that but for some retaliatory
motive these reassignments would not have occurred. See id. Hines has only
provided conclusory allegations and unsubstantiated assertions in support of
his retaliation claims. See Duffie, 600 F.3d at 371. We therefore uphold the
district court’s grant of summary judgment in favor of Marshall. See Austin,
864 F.3d at 328; Duffie, 600 F.3d at 371; FED. R. CIV. P. 56(a).
AFFIRMED; MOTION DENIED.
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