Dewayne Shelton v. Michael Lemons , 486 F. App'x 395 ( 2012 )

Case: 11-20670 Document: 00511957658 Page: 1 Date Filed: 08/15/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 15, 2012
No. 11-20670
Summary Calendar Lyle W. Cayce
Clerk
DEWAYNE SHELTON,
Plaintiff-Appellant
v.
Sergeant MICHAEL LEMONS; BRENDA J. HOUGH; JOHN WANG; Dr.
BETTY J. WILLIAMS; SHANTA CRAWFORD; STEVEN R. KRAMER; DAVID
HAAS; DAVID A. WOOD; TRICIA L. HOLLINGSWORTH; MICHAEL J.
MOFFETT; CYNTHIA WOOD; JOHN P. WERNER; ABBE KING; ALFRED
JANICEK; EILEEN KENNEDY,
Defendants-Appellees
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:10-CV-452
Before WIENER, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
Dewayne Shelton, Texas prisoner # 1254161, appeals from the district
court’s order dismissing his 42 U.S.C. § 1983 complaint filed against various
employees of the Texas Department of Criminal Justice (TDCJ). Shelton argues
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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No. 11-20670
that the district court erred in dismissing the claims against Sergeant Michael
Lemons because he was not served with the complaint.
Service of process is not a jurisdictional matter. Henderson v. United
States, 517 U.S. 654, 671-72 (1996). The district court was not required to order
service of process prior to dismissing the claims against Lemons as frivolous.
See In re Jacobs, 213 F.3d 289, 290 (5th Cir. 2000).
Shelton also contends that the district court abused its discretion in
denying his motion to stay the summary judgment proceedings for the purpose
of allowing discovery.
Discovery matters are reviewed for an abuse of discretion. Scott v.
Monsanto Co., 868 F.2d 786, 793 (5th Cir. 1989). Pursuant to Rule 56(d), a
nonmovant on summary judgment may request a continuance for further
discovery. In order to obtain a Rule 56(d) continuance to respond to a summary
judgment motion, the nonmovant must “present specific facts explaining his
inability to make a substantive response . . . and specifically demonstrating how
postponement of a ruling on the motion will enable him, by discovery or other
means, to rebut the movant’s showing of the absence of a genuine issue of fact.”
Washington v. Allstate Ins. Co., 901 F.2d 1281, 1285 (5th Cir. 1990) (internal
quotations and citations omitted) (construing former Rule 56(f)); see also FED .
R. CIV. P. 56(d). Because Shelton has not provided this court with any specific
facts that suggest additional time for discovery would have enabled him to locate
information that would have successfully rebutted the defendants’ summary
judgment motion, his challenge to the Rule 56(d) ruling fails. See Washington,
901 F.2d at 1285.
With regard to the claims against Lemons, Shelton argues that the district
court erred in dismissing the claims as unexhausted and frivolous. The district
court found that the claim that Lemons changed Shelton’s job description and
forced him to perform actions which aggravated his injury was unexhausted. As
to this claim, Shelton acknowledges that his grievance was not processed or
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reviewed based on an application of procedural rules. Although he contends that
the procedural rule was applied because the filing of a previous grievance had
been delayed, he provided no evidentiary support for this assertion. Though he
argues that he made every attempt to exhaust administrative remedies, Shelton
fails to show that he should be excused from the exhaustion requirement. See
Wright v. Hollingsworth, 260 F.3d 357, 358 n.2 (5th Cir. 2001).
The district court determined that the remaining claim against Lemons,
that he falsely reported Shelton as lifting weights, was subject to dismissal as
frivolous. Shelton contends that Lemons retaliated against him for filing
previous grievances against Sergeants Smith and More, officers who were not
parties in the instant complaint. Shelton argues that Lemons’s action in
reporting him resulted in the lifting of medical work restrictions and the
aggravation of preexisting injuries.
We review a § 1915 dismissal as frivolous for abuse of discretion. Norton
v. Dimazana, 122 F.3d 286, 291 (5th Cir. 1997). A complaint is frivolous and
lacks an arguable basis in law if it is based upon an indisputably meritless legal
theory. Neitzke v. Williams, 490 U.S. 319, 327 (1989). In order to establish a
retaliation claim, the prisoner must “produce direct evidence of motivation” or
“allege a chronology of events from which retaliation may plausibly be inferred.”
Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995) (internal quotation marks
and citations omitted).
As support for his claim of retaliation against Lemons, Shelton asserts
that he confronted Lemons and that Lemons asked him whether he intended to
file a grievance against him as he had done against other supervisors. These
facts do not give rise to an inference that Lemons’s actions were motivated by a
retaliatory intent. Moreover, the record shows that the identity of the officer
who reported Shelton to the medical department was never revealed to Shelton.
Shelton’s allegations of retaliation are conclusory and speculative, and therefore,
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he fails to show that the district court abused its discretion in dismissing the
claim as frivolous. See Woods, 60 F.3d at 1166.
As to all the other defendants, Shelton fails to brief any issue decided by
the district court. He does not challenge the district court’s reasons for granting
summary judgment or for dismissing the claims against the remaining
defendants. In his reply brief, Shelton offers a brief paragraph stating that the
defendants were not entitled to qualified immunity. However, he offers no facts
or legal argument in support of this assertion. Thus, he has not adequately
briefed this argument. See ANR Pipeline Co. v. Louisiana Tax Comm’n, 646 F.3d
940, 949 (5th Cir. 2011) (declining to address appellees’ argument that the claim
should have been dismissed on different grounds in part because it was not
adequately briefed). Because Shelton fails to raise any argument regarding the
aforementioned issues, these claims are abandoned. See Yohey v. Collins, 985
F.2d 222, 224-25 (5th Cir. 1993).
Accordingly, the judgment of the district court is AFFIRMED.
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