Romero v. Lann , 305 F. App'x 242 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 07-40782 FILED
Summary Calendar December 29, 2008
Charles R. Fulbruge III
Clerk
JOEL ROMERO
Plaintiff-Appellant
v.
JEFFREY LANN, Lieutenant at Telford Unit; BRANDI R GRAY, Correctional
Officer at Telford Unit; D KAY SHELTON, Mid Level Practitioner; DAVID
MOORE, Nurse Clinician
Defendants-Appellees
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 5:06-CV-82
Before WIENER, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
Joel Romero, Texas prisoner # 899767, filed the instant 42 U.S.C. § 1983
suit to seek redress for various wrongs allegedly committed by several officials
at the facility where he was incarcerated. The district court granted the
defendants’ motion for summary judgment and dismissed Romero’s suit. Romero
now appeals that dismissal. This court reviews the grant of a motion for
*
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should not be published and is not precedent except under the limited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. 07-40782
summary judgment de novo. Threadgill v. Prudential Sec. Group, Inc., 145 F.3d
286, 292 (5th Cir. 1998). Summary judgment is appropriate if the record
discloses “that there is no genuine issue as to any material fact and that the
movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(c). To
raise a valid § 1983 claim, a plaintiff must prove that a state actor infringed his
constitutional rights. Resident Council v. United States Dep't of Hous. and
Urban Dev., 980 F.2d 1043, 1050 (5th Cir. 1993).
The appellant argues that the district court erred by dismissing his claims
of deliberate indifference to serious medical needs and retaliation. He also
contends that the district court wrongly rejected his challenges to his
disciplinary convictions. He argues that the defendants’ deliberate indifference
is evidenced by his medical records, which he alleges show that, in one instance,
his medication was ordered two weeks later than two of the defendants said they
provided it to him. Romero also contends that the disciplinary charges against
him were fabricated. Romero’s conclusional assertions on these claims are
insufficient to establish a valid § 1983 claim or to show that the district court
erred by rejecting these claims. See Babb v. Dorman, 33 F.3d 472, 476 (5th Cir.
1994).
We reject Romero’s assertion that a retaliatory motive is shown by the
reversal of one of his disciplinary convictions. An examination of the record
confirms that one conviction was overturned, but there is nothing in the record
to suggest that this action was due to a finding that the charge was false or was
otherwise flawed in such a way as to support Romero’s assertions that the
charge was brought solely to retaliate against him. See Woods v. Smith, 60 F.3d
1161, 1166 (5th Cir. 1995). Romero’s challenge to the district court’s rejection
of his claim concerning the denial of two meals over an eight month period fails
because this action was de minimis. See Morris v. Powell, 449 F.3d 682, 684 (5th
Cir.), cert. denied, 127 S. Ct. 596 (2006).
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No. 07-40782
The district court did not err by granting the defendants’ motion for
summary judgment before Romero could complete discovery because Romero did
not establish that he was entitled to the discovery he sought. See Harlow v.
Fitzgerald, 457 U.S. 800, 817-18 (1982). Romero’s contention that the district
court erred by not recognizing his claims concerning his right to file grievances
and to have them reviewed likewise does not show error in connection with the
district court’s judgment. See Jones v. North Carolina Prisoners Labor Union,
433 U.S. 119, 137-38 (1977) (Burger, J., concurring); Geiger v. Jowers, 404 F.3d
371, 373-74 (5th Cir. 2005)). The record controverts Romero’s assertion that the
district court erred by making credibility judgments when analyzing the parties’
motions for summary judgment.
There is also no error with respect to district court’s decision to grant the
defendants’ motion for summary judgment on Romero’s claim concerning their
alleged violation of prison regulations. See Hernandez v. Estelle, 788 F.2d 1154,
1158 (5th Cir. 1986). Romero’s claim that the defendants engaged in a pattern
of retaliatory behavior is marked by “an excessively high level of generality” and
is unavailing. See Roberts v. City of Shreveport, 397 F.3d 287, 294 (5th Cir.
2005). Finally, our review of the record contradicts Romero’s arguments that the
district court improperly interpreted several cases.
The judgment of the district court is AFFIRMED.
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