*Local Rule 47.5 provides: "The publication of opinions

that have no precedential value and merely decide particular

cases on the basis of well-settled principles of law imposes

needless expense on the public and burdens on the legal

profession." Pursuant to that Rule, the Court has determined

that this opinion should not be published.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 95-20145

Summary Calendar

 

SIMON SMALLWOOD,

Plaintiff-Appellant,

versus

Dr. CHARLES ALEXANDER, ET. AL,

Defendants-Appellees.

 

Appeal from the United States District Court

for the Southern District of Texas

(CA-H-92-588)

 

(September 27, 1995)

Before HIGGINBOTHAM, DUHÉ, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Appellant Simon Smallwood is incarcerated within the Texas

Department of Criminal Justice. Mr. Smallwood filed this action

pro se and in forma pauperis under 42 U.S.C. § 1983 (1988)

alleging that certain TDCJ employees had violated the Eighth

Amendment by responding with deliberate indifference to his

urgent need for medical care. With leave of the district court,

Mr. Smallwood later amended his complaint to allege that TDCJ

officials had reacted to his lawsuit by retaliating against him
2

in violation of his right of access to the courts. The district

court dismissed most of the deliberate indifference claims during

a hearing held pursuant to Spears v. McCotter, 766 F.2d 179 (5th

Cir. 1985), deeming them frivolous under 28 U.S.C. § 1915(d)

(1988). It allowed the remaining Eighth Amendment and

retaliation claims to go forward and invited the state to file

for summary judgment. The state's subsequent motion for summary

judgment was granted, and this appeal followed. We affirm in

part, reverse in part, and remand.

I. Deliberate Indifference

The facts underlying Mr. Smallwood's claims of deliberate

indifference are simple. On the evening of October 17, 1991, Mr.

Smallwood suffered complications from prostate surgery performed

one week earlier. The complications took the form of the

presence of blood in his urine and shortly thereafter a total

inability to void because of a blood clot. Because of the

intervention of Sergeant Franshaw, Mr. Smallwood went to the

medical facility of his prison wing and was examined by a nurse. 

The nurse spoke to a doctor by phone, then told Mr. Smallwood to

drink fluids to increase bladder pressure in order to force out

the clot. After three or more painful hours in which this

treatment proved ineffective, Mr. Smallwood was taken to John

Sealy Hospital to receive catheterization, which relieved his

condition. Mr. Smallwood alleges that the medical staff showed

deliberate indifference to his medical needs by allowing him to

remain in pain for several hours before implementing effective
3

treatment, by tolerating diagnoses by telephone, by giving nurses

too much discretion to refuse access to the hospital, and by

assigning a Certified Medical Assistant instead of a Registered

Nurse or a doctor to treat inmates after hours.

We review the district court's dismissals under § 1915(d)

for abuse of discretion, Denton v. Hernandez, 504 U.S. 25, 33

(1992), and its grant of summary judgment to the defendants de

novo. We affirm the district court's actions.

The facts that Mr. Smallwood alleges will not support a

finding of deliberate indifference. In Farmer v. Brennan, 114 S.

Ct. 1970, 1980 (1994), the Supreme Court adopted "subjective

recklessness as used in the criminal law" as the proper standard

for deliberate indifference under the Eighth Amendment. 

Unreasonable and unexplained delay in affording medical care to

obvious infirmities may constitute deliberate indifference. 

Brown v. Hughes, 894 F.2d 1533, 1538 (11th Cir.), cert. denied,

496 U.S. 928 (1990); Loe v. Armistead, 582 F.2d 1291, 1296 (4th

Cir. 1978), cert. denied, 446 U.S. 928 (1980). Nevertheless,

"when a prison inmate has received medical care, courts hesitate

to find an Eighth Amendment violation." Waldrop v. Evans, 871

F.2d 1030, 1035 (11th Cir. 1989).

In this case, Mr. Smallwood received treatment in the form

of a recommendation for increased fluid intake shortly after

complaining of his bladder difficulty. When that method proved

ineffective, he was taken to the hospital to receive effective

treatment. Mr. Smallwood's complaint that the recommendation for
 

1 Given our view that the facts alleged by Mr. Smallwood

will not support an Eighth Amendment claim, we also affirm the

district court's dismissal of his requests for declaratory and

injunctive relief.

4

increase fluid was the short and easy way to avoid a problem

supports at most an inference of negligence and is therefore

insufficient under Farmer. See Estelle v. Gamble, 429 U.S. 97,

106 (1976). For similar reasons, we hold that the district court

properly disposed of Mr. Smallwood's claims regarding inadequate

medical staffing and dependence on telephone communications. Mr.

Smallwood has failed to state any facts supporting the inference

that medical staff were subjectively reckless with respect to

risks to inmate health.1

II. Retaliation

The facts underlying Mr. Smallwood's claim of retaliation

are complicated and difficult to discern from the incomplete

record before us. Mr. Smallwood alleges that TDCJ officials

retaliated against his filing of a § 1983 complaint by failing to

provide him medically required special transportation to John

Sealy Hospital, by transferring him to a work assignment that

aggravated his painful leg condition, and by refusing to allow

him to return to "trusty" housing. Reviewing de novo the

district court's grant of summary judgment to the Texas

defendants, we hold that the court properly dismissed Mr.

Smallwood's claim of retaliation in the form of refusal of

special transportation, but that the intent of those officials

responsible for Mr. Smallwood's housing and job transfers
5

constituted a genuine issue of material fact entitling Mr.

Smallwood to a ruling from a finder of fact. We therefore

reverse the grant of summary judgment to defendants Brewer,

Adams, and Williams, and remand for further proceedings.

"The law of this circuit is clearly established . . . that a

prison official may not retaliate against or harass an inmate for

exercising the right of access to the courts . . . ." Woods v.

Smith, 60 F.3d 1161, No. 94-30040, 1995 U.S. App. LEXIS 22122, at

* 8 (5th Cir. August 15, 1995). A retaliation claim focuses not

on the particular action taken but on the motive of the prison

official. Otherwise lawful and mundane prison administration

decisions become actionable under § 1983 if motivated by a desire

to retaliate. Id. at * 11; Jackson v. Cain, 864 F.2d 1235, 1248

n.3 (5th Cir. 1989) (holding that a job transfer decision "may be

arbitrary, but it may not be retaliatory against [the prisoner's]

exercise of constitutional rights"). While mere conclusory

allegations of retaliation are insufficient, a prisoner may

proceed by alleging "`a chronology of events from which

retaliation may be plausibly inferred.'" Woods, at * 15 (quoting

Cane v. Lane, 857 F.2d 1139, 1143 n.6 (7th Cir. 1988)).

With respect to the transportation issue, Mr. Smallwood

admits that defendant Brewer's failure to provide special

transportation was not intentional. If the failure was not

intentional, it could not have been retaliatory. The district

court correctly granted summary judgment on the transportation

claim.
6

Mr. Smallwood's job and housing claims are a different

matter. On both subjects, the district court failed to consider

the possibility that the defendants' proffered explanations were

pretextual. Although Mr. Smallwood did not mention the word

"pretext" in his briefs to either the court below or to this

court, he repeatedly pointed out facts inconsistent with the

defendants' explanations for his job and housing transfers. 

Remembering that Mr. Smallwood is proceeding pro se, we construe

his recitation of these facts as an argument that the defendants

made decisions designed to punish him for filing a lawsuit and

offered pretextual reasons for these decisions. Our review of

the record before us persuades us that a rational jury could

agree.

Regarding the job transfer, the defendants explained that

they switched Mr. Smallwood from his job as a kitchen worker to

one as a porter on sanitary grounds, pointing out that Mr.

Smallwood's incontinence required him to wear an adult diaper. 

Mr. Smallwood responds, however, that before filing suit he had

worked a significant length of time in the identical kitchen

position while wearing the adult diaper. He also questions the

veracity of the sanitation rationale when his new job requires

him to wash flatware, cups, plates, and other eating implements. 

Finally, he highlights that he received the sanitation

explanation from defendant Adams shortly after a different prison

official had assured him that he would be able to return to his

kitchen job, implying that Adams persuaded this official to
7

change his mind. Mr. Smallwood would support these allegations

with his own testimony at a trial. A rationale jury could infer

from this chain of events that the defendants' proffered reasons

for the job transfer were pretextual.

The allegation of a retaliatory housing transfer is a closer

question, but we reach the same conclusion. In response to Mr.

Smallwood's initial I-60 complaint form, defendant Brewer

explained that Mr. Smallwood had not returned from A-Wing to

trusty housing on L-Wing because he was physically unable to ride

the normal bus to the hospital for follow-up treatment. Mr.

Smallwood responds that several of the trips he did make from AWing were in the normal bus. To avoid the necessity of these

painful bus rides, Mr. Smallwood requested a transfer to Southern

Regional Unit, a facility closer to the hospital. Prison

official Zeller responded that there was no medical need for such

a transfer. In the midst of Mr. Smallwood's internal appeal,

Assistant Warden Pierson explained the housing transfer on the

grounds that Mr. Smallwood could not live on L-Wing because he

was taking Elavil. There was also testimony to this effect at

the Spears hearing. In response, Mr. Smallwood testified at the

Spears hearing that he had been receiving the drug regularly on

L-Wing without problems before filing his lawsuit. The district

court ultimately rested its grant of summary judgment on the

grounds that prison regulations prohibited an inmate with a

"PULHES designation" of 3 from living on L-Wing, and that Mr.

Smallwood admitted that his PULHES designation was 3. But the
 

2 The defendants remind us of our discretion to affirm the

judgment below on any legal grounds supported by the record. In

their brief, however, the defendants provide no legal argument at

all on Mr. Smallwood's retaliation claims. Under these

circumstances, we limit our review to the grounds relied upon

below.

8

defendants' own evidence proves that Mr. Smallwood has held this

designation since 1990, and Mr. Smallwood's Spears hearing

testimony establishes that he lived on L-Wing from sometime after

1990 until he filed his lawsuit without incident. Under these

facts, a rationale jury could disregard the defendants' medical

justifications as a pretext for a retaliatory motive.

We reiterate that a retaliation suit focuses not on whether

the defendants had legally sufficient grounds to justify a

particular action, but on the defendants' motive. Even the

action to correct a clear violation of a mandatory prison

regulation, if effectuated for an illicit purpose, triggers

liability under § 1983. Determining an particular official's

motive at a particular time may require inferences from the

evidence. We hold that a rational jury could reasonably infer a

retaliatory motive from the chain of events that Mr. Smallwood

alleges.2

We remand the retaliation claims for further proceedings. 

Given our holding on this issue, and the state of the record

before us, we are uncertain as to the proper disposition of Mr.

Smallwood's appeal from the district court's rulings regarding

his requests to amend his complaint to add prison official
 

3 On the amendment issue, we note that a prison official

violates the law if he retaliates against a prisoner for filing

suit against a colleague. Thus, the fact that Mr. Bachman was

not a defendant in the initial Eighth Amendment suit does not

necessarily mean that he did not act with illicit motive.

9

Bachman as a defendant3 and to compel the production of certain

records. We vacate the decisions of the district court of these

issues and remand for further consideration in light of our

opinion.

AFFIRMED IN PART, REVERSED IN PART, VACATED IN PART, AND

REMANDED.