Summary Calendar WESLEY BMAYES v. Travis State Jail

* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 07-51086
Summary Calendar
WESLEY B MAYES
Plaintiff-Appellant
v.
TRAVIS STATE JAIL; NATHANIEL QUARTERMAN, DIRECTOR, TEXAS
DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS
DIVISION; WILLIAM HENRY DRUMMOND; JOHN FLORES, Captain food
service supervisor, Travis State Jail; FRANK HOKE, Law Library, Texas
Department Criminal Justice; NATHAN WILCOX, Safety officer, Travis State
Jail; JACK R DAUGHERTY
Defendants-Appellees
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:06-CV-709
Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Wesley B. Mayes, Texas prisoner # 1274331, appeals the district court’s
grant of summary judgment dismissing his 42 U.S.C. § 1983 action against the
individually named appellants wherein he raised claims concerning the
United States Court of Appeals
Fifth Circuit
F I L E D
October 22, 2008
Charles R. Fulbruge III
Clerk

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No. 07-51086
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conditions of confinement at the jail. We review a district court’s order granting
a party’s summary judgment motion de novo. Hernandez v. Velasquez, 522 F.3d
556, 560 (5th Cir. 2008).
A prisoner seeking to recover damages on a conditions of confinement
claim must establish a physical injury that is more than de minimis. See
Alexander v. Tippah County, Miss., 351 F.3d 626, 631 (5th Cir. 2003). The record
does not support Mayes’s contention that the district court erred in concluding
that his sinus condition was a de minimis injury. However, even assuming that
Mayes established an injury that was more than merely de minimis, Mayes
failed to show that the defendants acted with deliberate indifference to his
health or safety. See Herman v. Holiday, 238 F.3d 660, 664 (5th Cir. 2001).
Accordingly, the district court did not err in granting summary judgment on this
claim.
Mayes failed to establish actual injury with respect to his claim of denial
of access to the courts. See Lewis v. Casey, 518 U.S. 343, 349-52 (1996).
Accordingly, the district court did not err by granting summary judgment on this
claim. The district court also did not err by granting summary judgment on
Mayes’s retaliation claim. “To state a valid claim for retaliation under section
1983, a prisoner must allege (1) a specific constitutional right, (2) the defendant’s
intent to retaliate against the prisoner for his or her exercise of that right,
(3) a retaliatory adverse act, and (4) causation.” Bibbs v. Early, F.3d , No. 07-
10452, 2008 WL 3319732 at *2 (5th Cir. Aug. 12, 2008) (internal quotations and
citation omitted). “Retaliation against a prisoner is actionable only if it is
capable of deterring a person of ordinary firmness from further exercising his
constitutional rights.” Id.
We perceive no abuse of discretion in the district court’s grant of the
defendants’ motion for a protective order and in the denial of Mayes’s motion for
the appointment of counsel. See Heitschmidt v. City of Houston, 161 F.3d 834,
840 (5th Cir. 1998); Ulmer v. Chancellor, 691 F.2d 209, 212 (5th Cir. 1982).

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No. 07-51086
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Finally, we note that Mayes make no argument on appeal challenging the
dismissal of his request for injunctive relief, the dismissal of the Travis State
Jail pursuant to 28 U.S.C. § 1915(e), or the district court’s determination that
his single case of diarrhea was a de minimis injury. Accordingly, these claims
do not survive the district court’s judgment. See Mayfield v. Texas Dep’t of
Criminal Justice, 529 F.3d 599, 604 (5th Cir. 2008).
AFFIRMED.

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