1Pursuant to Local 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

___________________________

No. 95-40804

___________________________

ERIC ANTONIO HOWARD,

Plaintiff-Appellant,

VERSUS

KENNETH SPARKS, ET. AL,

Defendants-Appellees.

___________________________________________________

Appeal from the United States District Court

for the Eastern District of Texas

(5:94-CV-69)

____________________________________________________

December 10, 1996

Before GARWOOD, DAVIS, STEWART, Circuit Judges.

DAVIS, Circuit Judge:1

Appellant, Eric Antonio Howard, an inmate in the custody of

the Texas Department of Criminal Justice, challenges the dismissal

of his § 1983 action pursuant to 28 U.S.C. § 1915. We affirm. 

I.

In March of 1994, Howard wrote three letters from his unit at

the Texas Department of Criminal Justice to three inmates who were

confined in the Titus County Jail. The letters concerned Howard’s

pending pro se lawsuit against Titus County officials, including
2

appellees Kenneth Sparks, Charles Bailey, Linda Hammond, and Jim

Bayuk, for alleged violations during his arrest and confinement at

the Titus County jail. Two of these letters were addressed to

Titus County inmates who Howard intended to call as witnesses in

the action and included questions he intended to ask these

witnesses at trial. The third letter was addressed to an inmate

Howard was assisting with legal claims and contained advice

relating to that inmate’s claims. It is undisputed that these

letters contained no threats, escape plans, or discussion of

criminal activities and posed no danger.

Howard alleges that these letters were seized by officials at

the Titus County Jail, photocopied, and mailed to appellee Kenneth

Sparks, a defendant in the pending civil action. Sparks confirmed

that the three letters were provided to his attorneys, who

ultimately disclosed the letters in the pending action pursuant to

the Civil Justice and Expense Delay Reduction Plan of the United

States District Court for the Eastern District of Texas.

Howard contends that his First and Fourteenth Amendment rights

of free speech and access to the courts were violated when

appellees seized, photocopied, and distributed to opposing counsel

the letters he wrote to his potential witness. The district court

adopted the report and recommendation of the magistrate judge,

which determined that Howard failed to assert a violation of a

recognized constitutional right and failed to demonstrate any harm

resulting from the treatment of his mail. Accordingly, the

district court granted summary judgment in favor of appellees. 
3

II.

We review the district court’s grant of summary judgment de

novo. Brewer v. Williams, 3 F.3d 816, 819 (5th Cir. 1993), cert.

denied 114 S.Ct. 1081 (1994). A party seeking summary judgment

bears the initial burden of identifying those portions of the

record, including any affidavits, that demonstrate the absence of

a genuine issue of material fact. Celotex v. Catrett, 477 U.S.

317, 325 (1986). Once the movant carries its burden, the burden

shifts to the non-movant to show that summary judgment should not

be granted. Id. at 324-25. The non-movant may not rest on mere

allegations or denials in its pleadings but must set forth specific

facts showing the existence of a genuine issue for trial. Anderson

v. Liberty Lobby, 477 U.S. 242, 256 (1986).

In response to Howard’s allegations, appellee Rex Mars, the

head jailer at the Titus County Jail, certified by affidavit that

no official at the jail searched, seized, and/or photocopied the

letters in question. Furthermore, Mars added that, as head jailer,

he oversaw distribution of all mail at the jail and “would have

knowledge if this in fact had been done.” Likewise, appellee

Kenneth Sparks certified that he had “no personal knowledge of the

circumstances under which the letters were obtained” and “played no

role . . . in the alleged seizure.” Mars' affidavit placed the

ball squarely in Howard's court to come forward with evidence

establishing that appellees participated in coyping and

distributing the letters, the factual basis for Howard's suit. See
 

2 Because the summary judgment evidence does not establish

that appellees participated in the complained of conduct, we need

not decide whether that conduct would violate a right secured to

Howard under the Constitution. 

4

Woods v. Edwards, 51 F.3d 577, 583 (5th Cir. 1995) (citing Lozano

v. Smith, 718 F.2d 756, 768 (5th Cir. 1983)). Howard failed to

meet this burden. While it is clear that someone copied the

letters in question, Howard has not carried his burden of

establishing that appellees participated in these acts. Howard’s

only evidence linking appellees to this conduct is his statement

that he has a witness, Larry Elliot, that saw three of the

appellees “hold, possess, and read” the letters. However, Larry

Elliot’s affidavit makes no specific allegations concerning any of

the appellees. Rather, he merely states that he witnessed “several

incidents” related to the case, but “reserve[s] disclosure of these

issues until such time as proper."” These statements are

inadequate to raise a genuine issue of material fact that appellees

participated in the complained of conduct.2

III.

Howard has failed to satisfy his summary judgment burden of

showing that appellees participated in copying and distributing his

letters. Accordingly, the district court’s order granting summary

judgment in favor of appellees is affirmed.

AFFIRMED.