Villasana v. Newman

• Court: Court of Appeals for the Fifth Circuit
• Decided: October 11, 2022
• Docket: 21-40360
• Status: Unpublished

Opinion

Case: 21-40360 Document: 00516504103 Page: 1 Date Filed: 10/11/2022

United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit

FILED October 11, 2022 No. 21-40360 Lyle W. Cayce Summary Calendar Clerk

Gonzalo L. Villasana, Sr.,

Plaintiff—Appellant,

versus

Captain Newman; M. Jones, Sergeant,

Defendants—Appellees.

Appeal from the United States District Court for the Eastern District of Texas No. 9:17-CV-20

Before Smith, Dennis, and Southwick, Circuit Judges. Per Curiam:*

Gonzalo Villasana, Sr., Texas prisoner #1445544, appeals the dismis- sal of his 42 U.S.C. § 1983 suit against Captain Mitchell Newman and Ser- geant Melenda Jones, alleging that they conspired to file and issued disciplin- ary charges against Villasana for possession of contraband as retaliation for

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circum- stances set forth in 5th Circuit Rule 47.5.4. Case: 21-40360 Document: 00516504103 Page: 2 Date Filed: 10/11/2022

No. 21-40360

his filing an administrative grievance with the prison warden. First, Villasana maintains that the district court erred when it issued its judgment before receiving and considering his objections to the magistrate judge’s report and recommendation. The district court, however, consid- ered those objections when addressing Villasana’s Federal Rule of Civil Pro- cedure 59(e) motion, and any error related to its consideration of Villasana’s objections was harmless because they were without merit. See 28 U.S.C. § 636(b)(1); Smith v. Collins, 964 F.2d 483, 485 (5th Cir. 1992). Second, Villasana avers that the district court erred in granting the defendants’ Federal Rule of Civil Procedure 56 motion for summary judg- ment and determining that the defendants were entitled to qualified immun- ity on his retaliation claims. Specifically, Villasana asserts that there is a gen- uine factual dispute regarding his retaliation claims based on his and his cell- mate’s affidavits. In general, summary judgment is appropriate if the record discloses “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); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A factual issue is “material” if its resolution would affect the outcome of the suit under the applicable law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact is “‘genuine’ . . . if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. Villasana has not demonstrated a genuine material factual dispute regarding his retaliation claims against Newman and Jones. See Poole v. City of Shreveport, 691 F.3d 624, 627 (5th Cir. 2012); McDonald v. Steward, 132 F.3d 225, 231 (5th Cir. 1998). Villasana claimed that Newman charged him with possession of contraband in retaliation for filing an administrative grievance against him with the warden, but, in his affidavit, Newman dis-

2 Case: 21-40360 Document: 00516504103 Page: 3 Date Filed: 10/11/2022

avowed any knowledge of that grievance and explained why, based on prison policy, he would not have been aware of any such filing. Similarly, in her affidavit, Jones stated that she did not know of any grievance filed by Villa- sana against the warden and also denied receiving any order from Newman to file charges against Villasana in retaliation for exercising his constitutional right to seek administrative redress. Jones also explained in her affidavit that she filed charges against Villasana and his cellmate in regard to the contra- band. Finally, Villasana’s cellmate stated in his affidavit that every inmate was moved off the unit on the day of the contraband seizure. Therefore, the record evidence, when construed in Villasana’s favor, supports the district court’s finding that there was no retaliatory intent for the contraband charge. See Poole, 691 F.3d at 627; McDonald, 132 F.3d at 231. Because there was no factual dispute regarding a constitutional violation, the court did not err in its conclusion that the defendants were entitled to quali- fied immunity. See Morrow v. Meachum, 917 F.3d 870, 874 (5th Cir. 2019). Finally, Villasana does not address the district court’s reasons for con- cluding that the defendants were entitled to summary judgment on his con- spiracy claim. He therefore has abandoned that claim. See Hughes v. Johnson, 191 F.3d 607, 613 (5th Cir. 1999). The judgment is AFFIRMED.