United States Court of Appeals

for the Fifth Circuit

No. 21-40024

Summary Calendar

James E. Wilson, 

Plaintiff—Appellant,

versus

Andrew H. Nino; Benjamin P. Brako; John R. Delapp, Jr.; 

Daniel P. Fernandez, 

Defendants—Appellees.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 2:19-CV-394

Before Higginbotham, Higginson, and Duncan, Circuit Judges.

Per Curiam:*

James E. Wilson, Texas prisoner # 1842956, has appealed the district 

court’s order denying his motion for summary judgment; granting the 

motion for summary judgment of defendants Sergeant Andrew H. Nino; 

* Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited 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 Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

August 4, 2022

Lyle W. Cayce

Clerk

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Sergeant Benjamin P. Brako; Major John R. DeLapp, Jr.; and Assistant 

Warden Daniel P. Fernandez, all employees at the McConnell Unit of the 

Texas Department of Criminal Justice, Institutional Division; and denying 

his request for injunctive relief as moot. 

In his complaint, Wilson alleged that Nino, Brako, and DeLapp 

retaliated against him for complaining through the grievance process that he 

was sexually assaulted by another inmate and alleged that Fernandez had 

failed to intervene in the wrongful acts of the other defendants. He 

complained that the defendants extended his stay in prehearing/security 

detention, wrongfully charged him with disciplinary violations, removed him 

from safekeeping custody, and returned him to the general population. 

We review de novo a grant of summary judgment, applying the same 

standard as the district court. Nickell v. Beau View of Biloxi, LLC, 636 F.3d 

752, 754 (5th Cir. 2011). “The [district] court shall grant summary judgment 

if the movant shows that there is no genuine dispute as to any material fact 

and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. 

P. 56(a). We “draw all reasonable inferences in favor of the nonmoving 

party.” Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 

2007) (internal quotation marks and citations omitted). Where, as here, a 

qualified immunity defense is pleaded, the burden shifts to the plaintiff to 

rebut it by establishing a genuine issue as to whether the defendants’ 

allegedly wrongful conduct violated a clearly established constitutional right. 

Brown v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010). 

“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.” McDonald v. Steward, 132 F.3d 225, 231 (5th Cir. 1998). The 

prisoner must show that, but for the retaliatory motive, the incident 

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complained of would not have occurred. Id. A claim of retaliation must be 

supported by direct evidence or a chronology of eventsfrom which retaliation 

can be inferred. Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995).

Wilson’s arguments are conclusory and are not supported by citations 

to the record. See Fed. R. App. P. 28(a)(8)(A); 5th Cir. R. 28.2.2

(requiring record citations). Several of Wilson’s arguments—including that 

he was defamed, that he was harassed and assaulted after his complaint was 

dismissed, and that his right to due process was violated during disciplinary 

proceedings—were raised for the first time on appeal. Therefore, we do not 

consider them. See Leverette v. Louisville Ladder Co., 183 F.3d 339, 342 (5th 

Cir. 1999). Although the brief is not in compliance with the rules, pro se 

briefs are liberally construed, and Wilson’s arguments have been expressed 

with sufficient particularity, although they are without merit. See Yohey v. 

Collins, 985 F.2d 222, 225 (5th Cir. 1993). 

The summary judgment evidence does not show that there is a 

genuine fact issue as to whether Brako, DeLapp, and Nino intended to 

retaliate against Wilson for exercising a constitutional right. See McDonald, 

132 F.3d at 231. Nor is there a genuine fact issue as to causation. Id. Wilson

has also not shown that there is a genuine issue of fact as to Fernandez’s

personal involvement in any constitutional violation. See Thompson v. Steele, 

709 F.2d 381, 382 (5th Cir. 1983) (“Personal involvement is an essential 

element of a civil rights cause of action.”). Because Wilson has not shown 

that the defendants violated his constitutional rights, he has not met his 

burden of overcoming their qualified immunity defense. See Brown, 623 F.3d 

at 253. Wilson’s motion for appointment of counsel is DENIED, and the 

district court’s order and judgment are AFFIRMED. 

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