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should not be published and is not precedent except under the limited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. 08-50262

Summary Calendar

RUSSELL NORMAN OLSTAD, JR

Plaintiff-Appellant

v.

JUANITA GONZALES, Parole Board Member, RISSIE OWENS, Presiding

Officer; BRYAN COLLIER, Director, Texas Department of Criminal Justice

Parole Division; HOWARD THRASHER, Parole Commission; CHARLES

SHIPMAN, Parole Commissioner

Defendants-Appellees

Appeal from the United States District Court

for the Western District of Texas

USDC No. 1:07-CV-667

Before WIENER, STEWART, and CLEMENT, Circuit Judges.

PER CURIAM:*

Plaintiff-Appellant Russell Norman Olstad, Texas prisoner # 391985,

appeals the dismissal of his 42 U.S.C. § 1983 complaint in which he alleged that

members of the Parole Board (Board) retaliated against him for engaging in

litigation. Olstad alleged that he was denied parole and received a five year setUnited States Court of Appeals

Fifth Circuit

F I L E D

February 20, 2009

Charles R. Fulbruge III

Clerk
No. 08-50262

2

off until his next review because he filed suit against officers of the Board who

had previously denied him parole.

Olstad has failed to brief, and thus has abandoned, his claim that the

Board’s conduct violated his rights under the Ex Post Facto Clause. See Yohey

v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).

Olstad contends that the defendants did not present summary judgment

evidence sufficient to support their position. He also contends that he presented

a chronology of facts which plausibly inferred that the defendants had a

retaliatory motive for their action. He further asserts that records of his

litigation activities were placed in his parole file in violation of Board policy, and

that he received the five year set-off to punish him for suing the Board members.

Olstad has not provided any direct evidence that the defendants acted with

a retaliatory motive, and his chronology of events, although detailed, does not

raise a plausible inference of retaliation. See Woods v. Smith, 60 F.3d 1161,

1166 (5th Cir. 1995). Olstad’s assertion that Collier, Gonzales, and Owens

influenced the later Board members is based solely on his own beliefs and

perceptions. He proffered no evidence that those three were personally involved

in the placement of the litigation materials in his file.

Thrasher and Shipman were not named as defendants in the first

complaint, and they provided legitimate reasons for denying parole and for the

five year set-off. They relied on the fact that Olstad’s offense was a violent

criminal act involving vulnerable victims and the use of a weapon and on their

determination that the amount of time that Olstad had served in prison was not

sufficient in light of the severity of his offense and his criminal history. Olstad

did not proffer any specific evidence to show that the five year set-off was the

result of retaliation rather than the result of these members’ perception of the

seriousness of his offense.

Although “prisoners generally enjoy a constitutional right of access to the

courts,” Johnson v. Rodriguez, 110 F.3d 299, 310 (5th Cir. 1997), “[r]etaliation
No. 08-50262

3

against a prisoner is actionable only if it is capable of deterring a person of

ordinary firmness from further exercising his constitutional rights.” Bibbs v.

Early, 541 F.3d 267, 270 (5th Cir. 2008) (internal quotation marks and citation

omitted). Olstad has not proffered any evidence that the alleged acts of

retaliation impeded his access to the courts or chilled his efforts to litigate. See

Rodriguez, 110 F.3d at 314. In sum, Olstad has failed to present an actionable

retaliation claim. Bibbs, 541 F.3d at 270.

Olstad contends that the district court did not allow him adequate time to

conduct discovery and granted summary judgment before the defendants

provided him with responses to the requested discovery. A district court may

exercise its “sound discretion” with respect to discovery matters. King v. Dogan,

31 F.3d 344, 346 (5th Cir. 1994). A party opposing a summary judgment motion

must show how additional discovery would defeat the summary judgment

motion. Id. Olstad has neither identified specific information that would have

been obtained as a result of discovery nor shown how any such information

would have defeated summary judgment. The documents requested by Olstad

were those that he had prepared and served on the defendants in his prior suit.

Thus, Olstad has not shown an abuse of discretion. See King, 31 F.3d at 346.

Olstad has failed to show that there is a genuine issue of material fact

regarding his retaliation claim. FED. R. CIV. P. 56(c). The district court did not

err in granting the defendants’ motion for summary judgment. The judgment

of the district court is, in all respects, 

AFFIRMED.