Terry Keys v. N. Cain

Case: 12-30072 Document: 00511930338 Page: 1 Date Filed: 07/23/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 23, 2012
No. 12-30072
Summary Calendar Lyle W. Cayce
Clerk
TERRY KEYS,
Plaintiff-Appellant
v.
BLAINE LACHNEY, Assistant Warden, Louisiana State Penitentiary; LOUIS
STROUD, Major; LIEUTENANT DICKIE ARMAND; JEREMY MCKEY,
Captain,
Defendants-Appellees
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:08-CV-31
Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
Terry Keys, Louisiana prisoner #77998, has filed a motion for leave to
proceed in forma pauperis (IFP) on appeal from the district court’s judgment
granting the defendants’ motion for summary judgment and dismissing his 42
U.S.C. § 1983 civil rights complaint. The district court denied Keys’ IFP motion,
certifying, pursuant to 28 U.S.C. § 1915(a)(3), that the appeal was not taken in
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-30072 Document: 00511930338 Page: 2 Date Filed: 07/23/2012
No. 12-30072
good faith. By moving for IFP, Keys is challenging the district court’s
certification decision. Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).
The record indicates that Keys has raised a nonfrivolous issue regarding
whether the district court erred in dismissing his retaliation claim1 under the
Parratt/Hudson doctrine.2 See Zinermon v. Burch, 494 U.S. 113, 125-28 (1990);
Thibodeaux v. Bordelon, 740 F.2d 329, 333 (5th Cir. 1984); Jackson v. Cain, 864
F.2d 1235, 1249 & n.5 (5th Cir. 1989). Accordingly, the IFP motion is granted.
See Baugh, 117 F.3d at 202. Nevertheless, we conclude that, under de novo
review, the district court’s grant of summary judgment was appropriate, and its
judgment is therefore affirmed. See id.; see also Holtzclaw v. DSC Comm. Corp.,
255 F.3d 254, 258 (5th Cir. 2001).
Keys’ retaliation claim was properly dismissed because he did not carry his
burden of establishing that “but for” the defendants’ alleged retaliatory motive,
he would not have received a disciplinary case or been convicted of the charge.
See Jones v. Greninger, 188 F.3d 322, 324-25 (5th Cir. 1999); Woods v. Smith, 60
F.3d 1161, 1166 (5th Cir. 1995). Although Keys contends that he was falsely
charged with drug dealing in retaliation for having filed a grievance, the
competent summary judgment evidence demonstrates that Keys was charged
with and convicted of a prison rule violation after two reliable confidential
informants advised officials that they had observed Keys selling cocaine to fellow
inmates, including Claude Hulin, and a subsequent search of Hulin on the same
date uncovered cocaine in his possession. Keys provided no evidence
contradicting this evidence or otherwise establishing a causal connection
between his exercise of his First Amendment rights and his disciplinary
1
Keys has abandoned by failing to brief any argument concerning the dismissal of the
other claims raised in his original complaint. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th
Cir. 1993).
2
Parratt v. Taylor, 451 U.S. 527, 544 (1981); Hudson v. Palmer, 468 U.S. 517, 533
(1984).
2
Case: 12-30072 Document: 00511930338 Page: 3 Date Filed: 07/23/2012
No. 12-30072
conviction, other than his conclusional assertion, which is insufficient. See
Woods, 60 F.3d at 1166; see also Duffie v. United States, 600 F.3d 362, 371 (5th
Cir. 2010).
IFP GRANTED; AFFIRMED.
3