### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-10820 Summary Calendar

CHRISTOPHER FLORES, Plaintiff-Appellant

v. DALE L. BOECKER, Correctional Security Officer V, Defendant-Appellee

Appeal from the United States District Court f or the Northern District of Texas USDC No. 1:10-CV-98

Before REAVLEY, JOLLY, and OWEN, Circuit Judges. PER CURIAM: * Christopher Flores, Texas prisoner # 1336588, filed this 42 U .S.C. § 1983 action a gainst C orrectional Security Officer Dale L. B oecker, a l l e g i ng that on August 20, 2 009, Boecke r i n t e n t i onally and willfully closed a cell door on his right h and, causing the f i fth m etacarpal b one to b reak. He alleged that Boecker closed the d o o r o n h i s hand in retaliation f or his r epeated c omplaints about Boecker’s failure to t imely perform an i n gress and egress. F urther, Flores alleged that Boec k e r w a s deliberately indifferent to his s erious m edical needs U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D June 20, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R

. 47. 5, the court has d eterm ined that this op inion should not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 12-10820 Document: 00512281808 Page: 1 Date Filed: 06/20/2013No. 12-10820

when Boecker ignored his complaint that his hand was broken, thereby r e s u lti n g in the delay of medical t reatment and alleged violations of the First, Eighth, and Fourteenth Amendments. Following a Spears 1 hearing, the magistrate judge summarily dismissed due process and official capacity claims, which Flores has not briefed and we d o

n o t consider. See Yohey v. Collins , 985 F.2d 2 22, 224-25 (5th Cir. 1993). T h e primary issue o n appeal concern s the court’s grant of summary judgment for Boecker on Flores’s claim of retaliation. We review a grant o f summary judgment de novo. Freeman v. Tex. Dep’t of Criminal Justice , 369 F.3d 854, 859 (5th Cir. 2004)

. T o s tate a valid c laim for retaliation under § 1 9 8 3 , “ a prisoner must allege (1) a specific constitutional right, (2) the d e f

endant’s i ntent to r etaliate against the prisoner for his or her exercise of that right, (3) a retaliatory adverse act, and (4) causation.” Jones v. Greninger , 188 F.3d 322, 324-25 ( 5th Cir. 1999). The magistrate judge h eld that Flores failed to establish retaliatory intent and causation. To prove retaliation, “[t]he inmate must produce dir e c t e v idence of motivation or, the more probable scenario, allege a chronology o f e vents from which retaliation may plausibly be inferred.” Woods v . S m i t h , 60 F.3d 1161, 1166 ( 5th Cir. 1995) (internal quotation a nd c i tation omitted). “Causation requires a showing that but for the retaliatory m otive th e complained of incident

. . . would not have occurred.” McDonald v . Stewart , 132 F.3d 225, 231 (5th Cir. 1998) (internal quotation and citation omitted). The parties here o ffered conflicti n g evidence on the issue of B oecker’s intent to injure Flores. By live t e s t i m ony and by a ffidavit, Flores alleged that Boecker intentionally and willfully slamme d t h e c ell door on his hand after Flores complaine d ab o ut Boecker’s failure to timely perform a n ingress and egress, and after he threatened to notify Boecker’s supervisor a nd to file a

1 Sp ea rs v . M

cCotter , 766 F

. 2d 179 ( 5th Cir. 1985)

.

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grievance. Boecker asserted in his own affidavit that he did not see F l o r e s ’s finger when he closed the cell door and that the i njury to Flores’s finger was not intentio n al. Whether or not Boecker intended t o i njure Flores is critical to Flores’s claim of retaliation, and also b ears on w hether Boecker was d eliberately indifferent toward Flores. See , e.g. , Gibbs v. King , 779 F.2d 1040, 1046 (5th Cir. 1986) (“A guard thus may not h arass an inmate in retaliation for the inmate complaining to s upervisors about the guard’s conduct.”). Resolution of B oecker’s intent is dependent on a fact-sensitive inquiry and credibility determination. In light of the contradictory record e vidence, Flores has presented an issue of fact that precludes summary j udgment. Accordingly, we reverse the district court’s judgment a nd remand for further proceedings. See Jackson v . Cain, 864 F.2d 1235, 1248 (5th Cir. 1989). In so doing, we express no opinion as to the merits of the retaliation claim. Although Flores also challenges on appe a l t h e denial of his spoliation motion, the court’s ruling was predicated on the g r a n t of summary judgment, which we have now held was erroneous. W e therefore need not address this issue. REVERSED AND REMANDED.

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