* 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. 07-51086

Summary Calendar

WESLEY B MAYES

Plaintiff-Appellant

v.

TRAVIS STATE JAIL; NATHANIEL QUARTERMAN, DIRECTOR, TEXAS

DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS

DIVISION; WILLIAM HENRY DRUMMOND; JOHN FLORES, Captain food

service supervisor, Travis State Jail; FRANK HOKE, Law Library, Texas

Department Criminal Justice; NATHAN WILCOX, Safety officer, Travis State

Jail; JACK R DAUGHERTY 

Defendants-Appellees

Appeal from the United States District Court

for the Western District of Texas

USDC No. 1:06-CV-709

Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.

PER CURIAM:*

Wesley B. Mayes, Texas prisoner # 1274331, appeals the district court’s

grant of summary judgment dismissing his 42 U.S.C. § 1983 action against the

individually named appellants wherein he raised claims concerning the

United States Court of Appeals

Fifth Circuit

F I L E D

October 22, 2008

Charles R. Fulbruge III

Clerk
No. 07-51086

2

conditions of confinement at the jail. We review a district court’s order granting

a party’s summary judgment motion de novo. Hernandez v. Velasquez, 522 F.3d

556, 560 (5th Cir. 2008). 

A prisoner seeking to recover damages on a conditions of confinement

claim must establish a physical injury that is more than de minimis. See

Alexander v. Tippah County, Miss., 351F.3d 626, 631 (5th Cir. 2003). The record

does not support Mayes’s contention that the district court erred in concluding

that his sinus condition was a de minimis injury. However, even assuming that

Mayes established an injury that was more than merely de minimis, Mayes

failed to show that the defendants acted with deliberate indifference to his

health or safety. See Herman v. Holiday, 238 F.3d 660, 664 (5th Cir. 2001).

Accordingly,the district court did not err in granting summary judgment on this

claim. 

Mayes failed to establish actual injury with respect to his claim of denial

of access to the courts. See Lewis v. Casey, 518 U.S. 343, 349-52 (1996).

Accordingly,the district court did not err by granting summary judgment on this

claim. The district court also did not err by granting summary judgment on

Mayes’s retaliation claim. “To state a valid claim for retaliation under section

1983, a prisoner must allege (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.” Bibbs v. Early, F.3d , No. 07-

10452, 2008 WL 3319732 at *2 (5th Cir. Aug. 12, 2008) (internal quotations and

citation omitted). “Retaliation against a prisoner is actionable only if it is

capable of deterring a person of ordinary firmness from further exercising his

constitutional rights.” Id.

We perceive no abuse of discretion in the district court’s grant of the

defendants’ motion for a protective order and in the denial of Mayes’s motion for

the appointment of counsel. See Heitschmidt v. City of Houston, 161 F.3d 834,

840 (5th Cir. 1998); Ulmer v. Chancellor, 691 F.2d 209, 212 (5th Cir. 1982).
No. 07-51086

3

Finally, we note that Mayes make no argument on appeal challenging the

dismissal of his request for injunctive relief, the dismissal of the Travis State

Jail pursuant to 28 U.S.C. § 1915(e), or the district court’s determination that

his single case of diarrhea was a de minimis injury. Accordingly, these claims

do not survive the district court’s judgment. See Mayfield v. Texas Dep’t of

Criminal Justice, 529 F.3d 599, 604 (5th Cir. 2008).

AFFIRMED.