Leggett v. Duke , 279 F. App'x 301 ( 2008 )

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          IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 22, 2008
No. 07-10590
Summary Calendar              Charles R. Fulbruge III
Clerk
JEFF LEGGETT
Plaintiff-Appellant
v.
JAMES DUKE, Warden; CAREY COOK, Assistant Warden; STACY JACKSON,
Assistant Warden; NOLAN B REYNOLDS, Maintenance Supervisor
Defendants-Appellees
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 1:05-CV-109
Before KING, DAVIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Jeff Leggett, Texas inmate # 590716, appeals the grant of summary
judgment for the defendants in his civil rights suit filed pursuant to 42 U.S.C
§ 1983 against officials at the Texas Department of Criminal Justice (TDCJ).
This court reviews a grant of summary judgment de novo. Freeman v. Texas
Dep’t of Crim. Justice,

369 F.3d 854

, 859 (5th Cir. 2004). Summary judgment is
proper under FED. R. CIV. P. 56 “if the pleadings, depositions, answers to
*
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should not be published and is not precedent except under the limited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.
No. 07-10590
interrogatories, and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett,

477 U.S. 317

, 322 (1986).
Leggett argues that the magistrate judge erred when he granted summary
judgment for the defendants on his claim that prison conditions violated the
Eighth Amendment. Leggett does not address the district court’s finding that
42 U.S.C. § 1997(e) precluded recovery of money damages. He has, therefore,
abandoned that issue. See Yohey v. Collins,

985 F.2d 222

, 224-25 (5th Cir. 1993).
Leggett argues correctly, however, that qualified immunity is not a defense
to claims for declaratory and injunctive relief and that the defendants are not
entitled to Eleventh Amendment immunity.           See Chrissy F. by Medley v.
Mississippi Dep’t of Public Welfare,

925 F.2d 844

, 849 (5th Cir. 1991).
Notwithstanding the lack of these defenses, Leggett has not created a genuine
issue of material fact regarding his entitlement to injunctive relief because the
summary judgment evidence establishes that the defendants did not
unreasonably disregard an objectively intolerable risk of harm. See Farmer v.
Brennan,

511 U.S. 825

, 846 (2004).
Leggett’s argument that the magistrate judge abused his discretion when
he denied Leggett a preliminary injunction is unavailing. Leggett failed to show
a substantial likelihood of success on the merits of his Eighth Amendment claim
or extraordinary circumstances. See Women’s Med. Ctr. v. Bell,

248 F.3d 411

,
419 n.15 (5th Cir. 2001); White v. Carlucci,

862 F.2d 1209

, 1211 (5th Cir. 1989).
Leggett argues that he stated a retaliation claim based on his assertion
that prison conditions about which he complained were in retaliation for the
exercise of his First Amendment right to complain about the officials, but that
the magistrate judge failed to address it. Leggett cites to his response to the
defendants’ motion for summary judgment. Leggett’s amended complaint,
however, did not allege retaliation. Even if, Leggett had properly alleged
2
No. 07-10590
retaliation, the defendants would be entitled to summary judgment. Leggett
fails to show that he would not have been confined in Unit 7 of the Robertson
Unit but for his letter writing, given the inmate affidavits he submitted to show
that numerous inmates suffered the same conditions as did Leggett.
Leggett argues that the magistrate judge erred when he granted the
defendants summary judgment on his equal protection claim. Leggett argues
that the defendants identified him as a “writ writer” and assigned him a
classification that resulted in his being placed in a more dangerous area of the
Robertson Unit. As with his retaliation claim, Leggett’s assertion that numerous
other inmates were housed with him in Unit 7 and experienced the problems
that he did belies his claim that he was singled out or that he suffered
“purposeful discrimination resulting in a discriminatory effect among persons
similarly situated.” Freeman v. Texas Dep’t of Crim. Justice,

369 F.3d 854

, 862
(5th Cir. 2004).
Leggett also argues that the magistrate judge erred when he granted the
defendants summary judgment on his conspiracy claim. Leggett’s conspiracy
claim is conclusional and fails to show an actual violation of § 1983. See Hale v.
Townley,

45 F.3d 914