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

____________

No. 22-40104

____________ Michael L. Mark,

Plaintiff—Appellant ,

versus

Lee Ann Spears; Kevin R. Whea t; Balden O. Polk; Vickie Barrow; Jonathan Clark; Gina Bentley; Jennifer Smith; Billy Horton; Lanette Li nthicum; LeAnn IronsRodriguez; Michael Greer; Texas Department of Criminal Justice,

Defendants—Appellees

.

______________________________ Appeal from the United States District Court for the Eastern District of Texas USDC No. 6:18-CV-309

______________________________ Before Duncan and Wilson, Circuit Judges , and Mazzant * , District Judge

. Per Curiam: ** Plaintiff-Appellant Michael L. Mark, a pro se prisoner, filed a civil suit against Defendants-Appellees under 42 U.S.C. § 1983, alleging violations of

* District Judge of the Eastern District of Texas, sitting by designation.

** This opinion is not designated for publication. See 5th Cir. R. 47.5. United States Court of Appeals Fifth Circuit 

### FILED August 17, 2023

Lyle W. Cayce Clerk Case: 22-40104 Document: 00516861614 Page: 1 Date Filed: 08/17/2023No. 22-40104

2 his constitutional rights. The district court dismissed Mark’s constitutional claims related to events that occurred in 2014, 2015, and 2016 with prejudice because it determined that those claims were time barred. The district court later dismissed Mark’s remaining clai ms for failure to state a claim upon which relief could be granted. Mark timely appealed and argues that the district court erred because he is entitled to equitable tolling on hi s claims and because he stated plausible claims for relief. We hold that the district court did not err and AFFIRM the district court’s judgment.

I. FACTS AND PROCEDURAL HISTORY On June 21, 2018, Plaintiff-Appella nt Michael L. Mark, an inmate confined to the Texas Department of Criminal Justice (“TDCJ”) and housed in the Powledge Unit in Protec tive Safe Keeping, filed the present suit against Lee Ann Spears, Kevin R. Wh eat, Balden O. Po lk, Vickie Barrow, Jonathan Clark, Gina Bentley, Je nnifer Smith, Billy Horton, Lanette Linthicum, LeAnn Irons-Rodriguez, Michael Greer, and the TDCJ (collectively, “Appellees”). 1 Mark alleges that each of the Appellees individually violated his constitutional rights and, as a wh ole, conspired to retaliate against and ha rass Mark in violation of 42 U.S.C. § 1983. 2 More specifically, Mark alleges that Appell ees (1) denied him access to legal materials, documents, and storage cont ainers, (2) accused him of being a

1 “Under the prison mailbox rule, a prisoner’s pleading is deemed to have been filed on the date that the pro se prisoner submits the pleading to prison authorities for mailing.” Stoot v. Cain , 570 F.3d 669, 671 (5th Cir. 2009) (citing Causey v. Cain, 450 F.3d 601, 604 (5th Cir. 2006); Houston v. Lack, 487 U.S. 266, 270–71 (1988)). In this case, the date that Mark submitted his pleading to pr ison authorities was June 21, 2018. Thus, the date Mark is considered to have fil ed his complaint is June 21, 2018.

2 After a preliminary review of Mark’s complaint, the magistrate judge ordered Mark to file an amended complaint fixing de ficiencies pointed out by the magistrate judge in his pleadings. Mark filed an amended complain t but added few, if any, additional facts. Case: 22-40104 Document: 00516861614 Page: 2 Date Filed: 08/17/2023No. 22-40104

3 “snitch” in front of other inmates and officers, (3) impeded his access to the courts by interfering with his legal ma il, (4) retaliated against him for filing administrative grievances, (5) acted with deliberate indifference to his request to have an outside dentist fi x his teeth, and (6) subjected him to excessive strip searches. In the lower court, Appellees filed three motions to dismiss. Relevant here, Appellees argued that Mark is time barred from pursuing claims that arose prior to June 21, 2016, because th ey are barred by th e two-year statute of limitations. Appellees further argued that Mark cannot utilize the doctrine of equitable tolling to revive his time- barred claims. The magistrate judge agreed that all of Mark’s claims were barred by the relevant statute of limitations and recommended that the district court dismiss Mark’s claims. Mark objected to the magistrate judge’s report and recommendation, pointing out that his complaint also cont ained allegations that arose in 2017 and 2018. After reviewing the repo rt and recommendation and Mark’s objections, the district court determ ined that the magistrate judge was correct insofar as she recommended di smissal of Mark’s time-barred claims. However, the district court limited the di smissal to those claims that arose in 2014, 2015, and 2016. Accordingly, the district court partially adopted the report and recommendation, dismissing Mark’s claims that accrued more than two years before he filed the present lawsuit. Later, Appellees Barrow and Sm ith filed a motion for summary judgment, arguing that Mark’s claims against them should be dismissed because Mark did not exhaust his admi nistrative remedies. The magistrate judge disagreed. However, the magist rate judge nonetheless recommended dismissal of Mark’s remaining claims be cause he failed to state a claim upon which relief could be granted under 28 U.S.C. § 1915(e)(2)(B)(ii). After dismissing the remaining claims, the di strict court entered a final judgment, Case: 22-40104 Document: 00516861614 Page: 3 Date Filed: 08/17/2023No. 22-40104

4 dismissing Mark’s lawsuit with prejudi ce as time barred and because he failed to state a claim. On appeal, Mark argues that the dist rict court erred when it dismissed his claims. As to the dismissal of his ti me-barred claims, Mark argues that we should reverse the district court beca use it should have applied equitable tolling principles. And, as to his other claims, Mark argues that we should reverse the district court’s dismissal because he alleged facts in his amended complaint that sufficiently stated plausible claims for relief.

We conclude that the district cour t did not err in dismissing any of Mark’s claims.

II. STANDARD OF REVIEW

We review the dismissal of a complaint under Rule 12(b)(6) de novo , accepting all well-pleaded facts as true and viewing those facts in the light most favorable to the plaintiffs. Spiller v. City of Te x. City, Police Dep’t , 130 F.3d 162, 164 (5th Cir. 1997); Gonzalez v. Kay , 577 F.3d 600, 603 (5th Cir. 2009). We also review dismissal of a complaint under § 1915(e)(2)(B)(ii) de

novo under the same standard applied to dismissals under Rule 12(b)(6). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, ‘to stat e a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (citation omitted). The plaintiff must allege facts that suggest liability and are more than consistent with unlawful conduct. Bell Atl. Corp. v. Twombly , 550 U.S. 544, 563 (2007). “A motion to dismiss may be granted on a statute of limitations defense where it is evident from the pleadings that the action is time barred, and the pleadings fail to raise some basis for tolling.” Taylor v. Bailey Tool Mfg. Co. , 744 F.3d 944, 946 (5th Cir. 2014).

III. ANALYSIS Case: 22-40104 Document: 00516861614 Page: 4 Date Filed: 08/17/2023No. 22-40104

5 In his appeal, Mark argues that the district court erred in dismissing his claims because (1) his claims should not be time barred, and (2) he did not fail to state a claim upon which relie f could be granted for his remaining claims. We address both arguments in turn.

A. Section 1983 Statute of Limi tations and Equitable Tolling Section 1983 does not prescribe a statute of limitations. Instead, “[t]he statute of limitations for a suit brought under § 1983 is determined by the general statute of limitations govern ing personal injuries in the forum state.” Piotrowski v. City of Hous. , 237 F.3d 567, 576 (5th Cir. 2001); see also Owens v. Okure , 488 U.S. 235, 249–50 (1989) (“[W]here state law provides multiple statutes of limitations for person al injury actions, courts considering § 1983 claims should borrow the general or residual statute for personal injury actions.”). As such, Texas’s two-year statute of limitations for personal injury claims applies in this case. T EX

. C IV

. P RAC

. & R EM

. C ODE § 16.003(a); Piotrowski , 237 F.3d at 576. When the claim accrues, however, is governed by federal law. Burrell v. Newsome , 883 F.2d 416, 418 (5th Cir. 1989) (“While the limitations period is determined by reference to state law, the standard governing the accrual of a ca use of action under section 1983 is determined by federal law.”). Under Fift h Circuit law, the limitations period begins to run when the plaintiff “knows or has reason to know of the injury which is the basis of the action.” Id. (citations omitted). In some instances, “[t]he doctrine of equitable tolling preserves a plaintiff’s claims when strict applicat ion of the statute of limitations would be inequitable.” Lambert v. United States , 44 F.3d 296, 298 (5th Cir. 1995) (citing Burnett v. N.Y. Cent. R.R. Co. , 380 U.S. 424, 428 (1965)). The plaintiff bears the burden of establishing that equitable tolling applies. Rotella v. Pederson , 144 F.3d 892 (5th Cir. 1 998). As we pointed out in Lambert , equitable tolling may apply in the following circumstances: Case: 22-40104 Document: 00516861614 Page: 5 Date Filed: 08/17/2023No. 22-40104

6 [A] claimant has received inadeq uate notice; or where a motion for appointment of counsel is pe nding and equity would justify tolling the statutory period until the motion is acted upon; or where the court has led the plainti ff to believe that she has done everything required of her.

Lambert , 44 F.3d at 299 (quoting Baldwin Cnty. Welcome Ctr. v. Brown , 466 U.S. 147, 151 (1984)); see also Ramirez v. City of San Antonio , 312 F.3d 178, 183 (5th Cir. 2002) (“We have fou nd that equitable tolling may be appropriate when ‘the plaintiff is acti vely misled by the defendant about the cause of action or is prevented in so me extraordinary way from asserting his rights.’” (quoting Teemac v. Henderson , 298 F.3d 452, 457 (5th Cir. 2002)). “Traditional equitable principles prec lude a court from invoking equitable tolling, however, when the party seek ing relief has an adequate legal or statutory remedy to avoid the conseque nces of the statute of limitations.” Lambert , 44 F.3d at 299. For example, equitable tolling generally does not apply when a plaintiff’s initial su it is dismissed without prejudice. Id. Instead, the plaintiff is left in the same position as if the first suit had never been filed. Id. That is, a plaintiff’s claims are not tolled for statute of limitation purposes until he or she refiles the lawsuit. Mark filed his complaint in the present action on June 21, 2018. As such, the two-year statute of limitatio ns bars Mark from bringing claims related to injuries that he knew of or had reason to know of before June 21, 2016. Mark does not dispute that the statute of limitations on those claims has run. Rather, on appeal , Mark complains that the district court erred when it did not apply the doctrine of equitabl e tolling such that he may bring claims that accrued before June 21, 2016. Mark’s argument is twofold. First, Mark argues that the Appell ees conspired to or actually did interfere with his access to the cour ts, legal materials, and communications with attorneys and legal organizations. Courts “do not apply the doctrine of Case: 22-40104 Document: 00516861614 Page: 6 Date Filed: 08/17/2023No. 22-40104

7 equitable tolling based solely on a plainti ff’s subjective impressions” though. Ramirez , 312 F.3d at 184. Rather, courts “examine ‘whether the defendant’s conduct, innocent or not, reasonably induced the pl aintiff not to file suit within the limitations period.’” Id. (cleaned up). A defendant’s affirmative acts must mislead the plaintiff befor e a court may apply the doctrine of equitable tolling. Id. Mark’s general allegations that the Appellees misled him, standing alone, are insufficient to support equitable tolling. See id. (holding that equitable tolling did not apply where a plaintiff provided little to no detail about how he was misled). Indeed, Mark offers nothing more than conclusory allegations. Mark did no t produce sufficient evidence to demonstrate that he was misled by Appellees; thus, Mark’s first argument is unavailing. Second, Mark argues that the seve rance order in a previous case provides grounds for equitable tolling. Mark’s argument, however, is based on a misunderstanding of wh at occurred in that case. See generally Mark v. Spears , 722 F. App’x 362 (5th Cir. 2018). Mark contends that he was actively disputing an order of the district court and, instead of responding to Mark’s dispute, the district court simply di smissed the lawsuit without prejudice. That is not what transpired. Rather, th e district court dismissed Mark’s first suit without prejudice because the magi strate judge repeatedly ordered Mark to file an amended complain t and he failed to do so. Id. Equitable tolling is inapplicable under these circumstances. Lambert , 44 F.3d at 300 (affirming a district court’s decision not to apply equitable tolling after a plaintiff’s case was dismissed without prejudice because the plaintiff had express legal remedies available that would have allo wed him or her to avoid dismissal); see also Williams v. Cook , No. 00-41271, 2001 WL 822777, at *1 (5th Cir. June 29, 2001) (affirming a district court’s refu sal to apply equitable tolling after a pro

se

litigant’s first lawsuit was di smissed without prejudice). Case: 22-40104 Document: 00516861614 Page: 7 Date Filed: 08/17/2023No. 22-40104

8 Strict application of the statute of lim itations would not be inequitable in this case. To be sure, this is not a case where Ma rk had inadequate notice or where Mark was led to believe by the district court that he had done everything required of him. See Lambert , 44 F.3d at 299. Nor is this a case where some kind of affirmative miscondu ct by Appellees lulled Mark into inaction. See id. On the contrary, here, as in Lambert , Mark’s actions caused the district court to dismiss his fi rst case and Mark had legal remedies available to him to remedy the dismissal. Many of Mark’s claims fall outside the statute of limitations period. Mark’s claims that he was denied dent al care and called a “snitch” accrued in 2014, some of his claims that he was denied legal storage, mail, and dictionaries accrued in 2015, some of hi s claims that he was not given case citations accrued in May 2016, and Ma rk’s claim regarding excessive strip searches accrued in the beginning of Ju ne 2016. Thus, all of Mark’s claims regarding his dental care, being calle d a “snitch,” and the excessive strip searches fall outside the statute of limit ations. Mark’s claims that he was denied legal storage, mail, dictionaries, and case citations that accrued before June 21, 2016, also fall outside the statute of limitations. It is evident from the pleadings that these claims are time barre d, and the pleadings fail to raise any basis for tolling. Accordingl y, it was proper for the di strict court to grant the motions to dismiss based on the statute of limitations.

B. Failure to State a Claim Turning to Mark’s rema ining claims, we further determine that the district court did not err in dismissing Mark’s timely claims for failing to state a claim upon which relief could be granted. A prisoner’s complaint against a go vernmental entity or an officer or employee of a governmental entity may be dismissed for failing to state a claim upon which relief may be granted. See 28 U.S.C. § 1915A(b). “A Case: 22-40104 Document: 00516861614 Page: 8 Date Filed: 08/17/2023No. 22-40104

9 complaint lacks an arguable basis in fa ct if, after providing the plaintiff the opportunity to present additional facts when necessary, the facts alleged are clearly baseless.” Talib v. Gilley , 138 F.3d 211, 213 (5th Cir. 1998). To start, we note that the magistra te judge pointed out deficiencies in Mark’s complaint and gave him the o pportunity to amend his complaint and to fix those deficiencies. Mark nonethel ess failed to allege additional facts that would support his claims. Thus, for the following reasons, we agree that the claims raised in Mark’s amended compla int lack an arguable basis in fact.

1. Access to the Courts Mark claims that Appellees impeded his right to access the courts in 2017 and 2018 by preventing him fr om completing his legal research, purposely delaying or denying his requ ests for legal citations and books, opening or mishandling hi s legal mail without him pr esent, and denying his outgoing mail to legal organizations. The magistrate judge determined, and the district court agreed, that Mark ne ither pleaded nor demonstrated actual injury or harm arising from these alle gations because he did not identify or demonstrate how his status as a litiga nt was prejudiced. We agree with the lower court that Mark did not allege that he suffered any actual harm or injury because of the Appe llees’ actions. Prisoners undoubtedly have a ri ght of access to the courts. Brewer v. Wilkinson , 3 F.3d 816, 820 (5th Cir. 1993). This right encompasses a prisoner’s ability “to prep are and transmit a necess ary legal document to a court.” Id. at 821. To prevail on an access- to-the-courts claim, however, a prisoner must show an actual injury. Lewis v. Casey , 518 U.S. 343, 349–51 (1996). Such an injury is shown when the prisoner demonstrates that the policies or actions of prison officials have hindered his ability to file a nonfrivolous legal claim. Smith v. Collin Cnty. Jail , 548 F. App’x 132, 133 (5th Cir. 2013) (citing Christopher v. Harbury , 536 U.S. 403, 414–22 (2002); Lewis , Case: 22-40104 Document: 00516861614 Page: 9 Date Filed: 08/17/2023No. 22-40104

10 518 U.S. at 351). Furthermore, insofar as a plaintiff alleges that his right to access the courts was impeded because of mail tampering, the plaintiff must show that his or her position as a liti gant was prejudiced because of the mail tampering. Walker v. Navarro Cnty. Jail , 4 F.3d 410, 413 (5th Cir. 1993). Mark argues that the harm he suff ered because he was denied access to the courts is obvious. However, Ma rk wholly fails to state how he was harmed. Mark does not specify what materials he was denied or how any denial impacted his ability to pursue hi s claims. And, while Mark alleges that his correspondence with legal organizati ons was interfered with, Mark does not identify any way in which his legal position suffered or any way in which he was prejudiced. Indeed, Mark was not prevented from filing a § 1983 lawsuit against the Appellees becaus e of their alleged actions. On the contrary, he was able to file two laws uits. Simply put, Ma rk must do more than make a conclusory statement that he was harmed. See, e.g. , Panda Brandywine Corp. v. Po tomac Elec. Power Co. , 253 F.3d 865, 868 (5th Cir. 2001) (noting that a plaintiff may not rely on conclusory statements to survive a motion to dismiss). Accordingly, under these circumstances, Mark has not shown that the district court erred when it dismissed his claims that he was denied access to the courts.

2. Retaliation Mark further argues that the district court erre d when it dismissed his First Amendment retaliation claim against Greer. Mark claims that Greer retaliated against him in violation of his First Amendment rights because, after Mark verbally reported Greer for failing to change the water coolers, Greer coughed up phlegm and spit it in to Mark’s food. In other words, Mark alleges that Greer retaliated against him by causing him to miss a meal. “Under the First Amendment, a prison official may not harass or retaliate against an inmate ‘for . . . complain ing to a supervisor about a guard’s misconduct.’” DeMarco v. Davis , 914 F.3d 383, 388 (5th Cir. 2019) (quoting Case: 22-40104 Document: 00516861614 Page: 10 Date Filed: 08/17/2023No. 22-40104

11 Woods v. Smith , 60 F.3d 1161, 1164 (5th Cir. 1 995)). “To prevail on a claim of retaliation, a prisoner must establish (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.” Id. (internal citations omitted). As to the third pron g, the retaliatory act must be more than de minimis

. Bibbs v. Early , 541 F.3d 267, 270 (5th Cir. 2008). “Retaliation against a prisoner is actionab le only if it is capable of deterring a person of ordinary firmness from fu rther exercising his constitutional rights.” Id. ; Morris v. Powell , 449 F.3d 682, 686 (5th Cir. 2006). And, as to the fourth prong, the prisoner must prov e that “but for the retaliatory motive the complained of incident . . . would not have occurred.” McDonald v. Steward , 132 F.3d 225, 231 (5th Cir. 1998) (quoting Johnson v. Rodriguez , 110 F.3d 299, 310 (5th Cir. 1997)). Importantly, courts are required to carefully scrutinize First Amendment retaliation claims. Woods , 60 F.3d at 1166. Mere conclusory allegations are insufficient. Id. Instead, an inmate must “allege a chronology of events from which retaliation may plausibly be inferred.” Id. (internal citations omitted). We agree with Mark that the phlegm incident, which we accept as true at the pleading stage, is reprehensible. Mark did not establish in his pleadings, however, that Greer’s actions, even if motivated by retaliatory intent, rise to the level of First Amendment retaliation because (1) Greer’s retaliatory act

was de minimis , and (2) Mark did not sufficient ly allege that but for Greer’s retaliatory motive the phlegm in cident would not have occurred. Taking these issues in reverse order, we start with the issues of intent and causation. Mark alleges in his amended complaint that “Greer’s direct retaliation was to cough up phlegm and mucus onto plaintiff’s breakfast tray” with the intent to “cause seriou s harm, sickness, or worse.” These allegations are insufficient to support that Greer had retaliatory intent or that Case: 22-40104 Document: 00516861614 Page: 11 Date Filed: 08/17/2023No. 22-40104

12 Greer’s allegedly retaliatory intent wa s causally connected to the phlegm incident. Mark alleges that Greer was ordered to start changing the water coolers after Mark’s report . However, Mark alleges no facts that Greer was aware that a prisoner repo rted him for failing to chan ge the water coolers or, more importantly, that Greer was specif ically aware that Mark reported him for failing to change the water coolers. An essential element of a retaliation claim is the ability to show causation, i.e., that the complained-of phlegm incident would not have occurred absent the retaliatory motive. See Johnson v. Rodriguez , 110 F.3d 299, 310 (5th Cir. 1997); Woods , 60 F.3d at 1166. Mark’s failure to allege any facts indi cating that Greer was even aware of the verbal report provides, at best, a we ak connection betw een any retaliatory motive and the retaliatory act. Mark was given the opportunity to amend his pleadings and provide additional fact s but did not. With out more, Mark’s pleadings are insufficient to suppor t the essential elements of a First Amendment retaliation claim. Now we turn to Greer’s retaliatory act. Mark’s claim that Greer committed a First Amendment retaliatory act against him when he deprived him of a meal must be viewed through the lens of the Eighth Amendment. The Eighth Amendment requires that inmates be provided “‘well-balanced meal[s], containing sufficient nutrit ional value to preserve health.’” Green v. Ferrell , 801 F.2d 765, 770 (5th Cir. 19 86) (footnote omitted) (quoting Smith v. Sullivan , 553 F.2d 373, 380 (5th Cir. 1977)); see also Eason v. Thaler , 73 F.3d 1322, 1327 (5th Cir. 1996) (per curiam ) (“To comply with the Constitution, inmates must receive ‘reasonably adeq uate’ food.”). “The deprivation of food constitutes cruel and unusual punishme nt only if it denies a prisoner the ‘minimal civilized measure of life’s necessities.’” Talib , 138 F.3d at 214 n.3 (quoting Wilson v. Seiter , 501 U.S. 294, 298 (1991)) (internal quotations omitted). “Whether the deprivation of food falls below this threshold depends on the amount and duration of the deprivation.” Id. “The Eighth Case: 22-40104 Document: 00516861614 Page: 12 Date Filed: 08/17/2023No. 22-40104

13 Amendment does not require that prison ers receive three meals a day; rather, the Eighth Amendment requires that ja ils provide inmates with well-balanced meals, containing sufficient nutrit ional value to preserve health.” Grissom v. Patterson , No. 91-7137, 1993 WL 560256, at *4 (5th Cir. Dec. 27, 1993) (cleaned up) (citing Green , 801 F.2d at 770; Smith v. Sullivan , 553 F.2d 373, 380 (5th Cir. 1977)). With these Eighth Amendment princi ples in mind, Greer’s retaliatory act—depriving Mark of a meal by spitting in it—is a de minimis act for First Amendment retaliation purposes becaus e he only missed a single meal. See Green , 801 F.2d at 770–71 (holding that only providing prisoners two meals a day does not violate the Eighth Amendment); see also Talib , 138 F.3d at 214 n.3 (holding that it is doubtful a pr isoner was denied the “minimal measure of life’s necessities” when he missed fi fty meals over the course of five months). While Mark undeniably exercised hi s First Amendment right to file grievances, he nonetheless fails to alle ge a chronology of events from which retaliation may be plausibly inferred. As such, the district court did not err in dismissing Mark’s retaliation claim agains t Greer for failure to state a claim.

3. Failure to Respond to Grievances Mark argues that the district cour t erred when it dismissed his claim that prison officials failed to respon d to his grievances. However, “any alleged due process violatio n arising from the alleged failure to investigate [an inmate’s] grievances is indisputably meritless . . . .” Geiger v. Jowers , 404 F.3d 371 374 (5th Cir. 2005). Accordin gly, the district court did not err in dismissing Mark’s claim that prison offi cials failed to adequately respond to his grievances.

4. Conspiracy to Retaliate Case: 22-40104 Document: 00516861614 Page: 13 Date Filed: 08/17/2023No. 22-40104

14 Next, Mark argues that the district court erred when it dismissed his conspiracy claims. Mark claims that A ppellees conspired to retaliate against him when they interfered with his legal mail and right to access the courts. And, generally, Mark claims that th ere was a system-wide conspiracy to deny, deprive, harass, and retaliate agai nst Mark for exposing alleged wrongs done to him. To establish a conspiracy under § 1983, “a prisoner must allege an actual violation of a right protecte d under § 1983 and that the defendants acted in concert with specific intent to violate that right.” McKinney v. McDuffie , 789 F. App’x 413, 416 (5th Cir. 2019) (internal citations omitted). Plaintiffs who assert conspiracy claims under civil rights st atutes must plead the operative facts upon wh ich their claim is based.” Young v. Biggers , 938 F.2d 565, 569 (5th Cir. 1991). “‘Bald allegations’ of a conspiracy are not enough.” McKinney , 789 F. App’x at 416 (quoting Young , 938, F.2d at 569). Mark’s general conspiracy claim fails because Mark offers nothing more than conclusory, unsupported stat ements. As we just discussed, bald allegations of a conspiracy are in sufficient to support a claim. See id. Thus, the district court did not err when it dismissed Mark’s conspiracy claims. As to Mark’s more specific cl aims that Appellees conspired to interfere with his legal mail and his righ t to access the courts, Mark’s claims fail for the same reasons that Mark’s no n-conspiratorial le gal mail and access claims fail. Mark does no t allege facts that would support Mark suffered any injury or was harmed by the Appellees’ actions. Therefore, the district court did not err in dismissing these claims either.

5. Supervisory Liability Mark further argues that the district court erred by dismissing his claims of supervisory liability. Mark contends that Spears, Smith, Barrow, Polk, Clark, Horton, and Linthicum are supervisory officials that breached their duties under state law when they acted with deliberate indifference Case: 22-40104 Document: 00516861614 Page: 14 Date Filed: 08/17/2023No. 22-40104

15 toward a resulting constitutional inju ry. “Section 1983 does not create supervisory or respondeat superior liability.” Oliver v. Scott , 276 F.3d 736, 742 (5th Cir. 2002). “Rather, a plai ntiff must show either [that] the supervisor personally was involved in the constituti onal violation or that there is a ‘sufficient causal connecti on’ between the supervisor’s conduct and the constitutional violation.” Evett v. Deep E. Tex. Reg’l Narcotics Trafficking Task Force , 330 F.3d 681, 689 (5th Cir. 2003) (quoting Thompkins v. Belt , 828 F.2d 298, 304 (5th Cir. 1987)). “In order to establish supervisor liability for constitutional violations committed by subordinate employees, plaintiffs must show that the supervisor acted, or failed to act, with deliberate indifference to violations of others’ constitutional rights committed by their subordinates.” Porter v. Epps , 659 F.3d 440, 446 (5th Cir. 2011) (cleaned up) (quoting Gates v. Texas Dep’t of Prot. & Reg. Servs. , 537 F.3d 404, 435 (5th Cir. 2008)). Mark does not sufficiently allege a supervisory retaliation claim. Mark fails to allege any plausible claims re garding the constitutional violations allegedly committed by Appellees. As such, Mark does not demonstrate a cognizable claim of superv isory liability under § 1983 and the district court did not err in dismissing Mark ’s supervisory liability claims. See id.

IV. CONCLUSION For the foregoing reasons, the judgment of the district court is AFFIRMED

. Case: 22-40104 Document: 00516861614 Page: 15 Date Filed: 08/17/2023