Case: 15-10364      Document: 00513624749         Page: 1    Date Filed: 08/04/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fifth Circuit

                                                                                   FILED
                                      No. 15-10364                            August 4, 2016
                                                         Lyle W. Cayce
STEPHEN C. WALKER, also known as Stephen Clayton Walker,      Clerk


              Plaintiff - Appellant

v.

MICHAEL D. SAVERS; JIMMY CORLEY; GRANDVILLE SANDERS; BRAD
LIVINGSTON, in His Official Capacity as the Executive Director of the Texas
Department of Criminal Justice; SHAWN WATSON; RUSSELL BOCKMAN,

              Defendants - Appellees




                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 2:11-CV-94


Before WIENER, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Stephen C. Walker, a prisoner at the Rufe Jordan
Unit (“Jordan Unit”) of the Texas Department of Criminal Justice (“TDCJ”),
brought this action against a number of TDCJ officials. He asserts claims




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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under 42 U.S.C. § 1983, for violations of his rights under the First, Fifth,
Eighth, and Fourteenth Amendments, and claims in tort under Texas law.
                                             I.
                                FACTS & PROCEEDINGS
A.     FACTS
       TDCJ officials assigned Walker to work as a mechanic maintaining,
repairing, and rebuilding equipment and vehicles owned by the TDCJ. He was
required to perform this work in a dilapidated shed, known as the “inside yard
shack,” for ten hours a day, five days a week. Walker alleged that shack had
no heat, inadequate light, exposed wiring, burned outlets, structural rot, and
a faulty roof that leaked “in torrents” during rain and snow. The conditions in
the shack exposed Walker to the elements, including precipitation and extreme
temperatures. Walker notified the officials at the Jordan Unit that the shack
was unsafe, but they did nothing in response.
       Late in 2010, while Walker was repairing a utility vehicle in the dark
shack, he inadvertently pressed his face against the vehicle’s hot exhaust pipe,
which was not visible in the poor light. As a result, he suffered second-degree
burns. Defendant-Appellee Grandville Sanders, a TDCJ official, observed
Walker’s injury and, after Walker told him that he would have been able to
avoid the pipe if officials had not failed to remedy the conditions in the shack,
Sanders sent him to the infirmary, where he was prescribed two weeks of
treatment.
       Walker says that when he returned to work Sanders informed him that,
“to cover our tails,” he would submit a disciplinary case against Walker for
getting burned. 1 Walker responded that the TDCJ officials had forced him to



       1In considering a motion for summary judgment, all facts must be viewed in the
light most favorable to the nonmovant. The facts here are restated in such a light without
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work in unsafe conditions. Nonetheless, Sanders proceeded to submit the
disciplinary case, charging that Walker had violated TDCJ Disciplinary Rule
44q, which prohibits a prisoner from “[e]ngaging in negligent behavior or in an
unsafe act that results in injury.” As a result, Walker was interviewed by an
investigator. He told the investigator that Sanders had submitted the case
against him in retaliation for his comments regarding the TDCJ officials’
conduct. He also told the investigator that Rule 44q was so ambiguous that it
could be understood to prohibit almost any conduct.
       About a week after he was injured, Walker sent a letter to Defendants-
Appellees Brad Livingston, director of the TDCJ, and Michael Savers, warden
of the Jordan Unit. Walker’s letter to Livingston and Savers was styled as a
“pre-suit notice.” In it, he informed them of the conditions in the shack, the
officials’ tortious conduct in failing to repair the shack and making Walker
work there, and the disciplinary case that Sanders had submitted in retaliation
for Walker’s comments regarding both the conditions in the shack and the
TDCJ officials’ conduct.
       The hearing in his disciplinary case was held several days later, and
Walker was found guilty of violating Rule 44q by committing an unsafe act. As
punishment, he was given a reprimand instructing that he be aware of his
surroundings. The following day, Walker provided Defendant-Appellant
Shawn Watson with a complaint discussing the conditions in the shack, the
officials’ conduct, the retaliation, and Rule 44q’s vagueness. In that complaint,
Walker also stated that Sanders had not actually seen Walker’s injury occur.
       Four days after Savers received Walker’s pre-suit notice, TDCJ officials
served Walker with three more disciplinary cases, ostensibly prepared and


resolving any disputes as to their veracity. For instance, in this context, we assume that
Walker’s account is accurate.

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submitted by Defendant-Appellant Jimmy Corley, who apparently supervised
Walker’s work, indicating that, while Corley was away on sick leave, Walker
had disregarded his instructions by running and repairing the utility vehicle
in the shack. The three disciplinary cases charged Walker with failing to obey,
unauthorized use of tools, and destruction of property.
      In response, Walker complained to Sanders that Corley had been on
leave when the injury occurred. He also complained that the three new
disciplinary cases were merely retaliation for Walker’s pre-suit notice to
Savers and for Walker’s grievance. He asserted further that other TDCJ
officials had instructed him to repair the utility vehicle, contrary to the charges
in the three new disciplinary cases.
      A hearing on those three new cases occurred several weeks later, early
in 2011. Walker was again found guilty and, as punishment, was sentenced to
45 days of commissary, recreation, and cell restrictions, and he was made to
forfeit about $200. The following day, the Unit Classification Committee
(“UCC”) met, and Savers, while presiding over the UCC, asked Walker: “Do
you know what initiated all this, why all this . . . happened?” When Walker
responded that it was a result of his injury, Savers stated: “I’ll tell you the
truth. I initiated all this because of your [pre-suit notice]. You threatened me.”
When Walker denied that he had made any threats in the notice, Savers
replied: “I know you have a copy of the [notice]. Go back and reread it.” The
UCC then reassigned Walker to work elsewhere and downgraded his “line
class.”
      A day after the UCC met, TDCJ officers, acting on Savers’s orders,
confiscated all of Walker’s property, except for his legal papers. Walker later
met with another TDCJ officer to reclaim his property. Yet, again on Savers’s
orders, the officer refused to return anything that was not listed on Walker’s


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“property papers.” Because Walker’s typewriter was not listed on those papers,
the TDCJ officials served Walker with yet another disciplinary case, charging
him with possession of contraband, viz. the typewriter. When Walker
complained to the officer who returned his property that the new case was
further retaliation for his comments, the officer told Walker that he was merely
following Savers’s orders. After a hearing in that new case, Walker was again
found guilty and, as punishment, received yet another 45 days of commissary,
recreation, and cell restrictions, was downgraded yet another line class, and
lost 30 days of good time credits.
      After an internal appeal, Walker’s conviction in the original disciplinary
case, viz. committing an unsafe act by getting burned, was reversed because
the “elements of the charge [were] not met.” On remand, the TDJC officials
were permitted to bring the case again with amended charges, which they did.
While the initial charges were that Walker “was working on the [utility
vehicle]” and “went to get up and burned his face on the muffler,” the amended
charges asserted that Walker, “after operating the [vehicle] and not allowing
it to cool off[,] did work on the [it] . . . then stood up and burned his face on the
muffler.” At a rehearing on that disciplinary case, Walker was again found
guilty and, as punishment, again received a reprimand to be aware of his
surroundings.
B.    PROCEEDINGS
      Walker then brought this action, asserting claims under § 1983. He
alleged that Savers, Corley, and Sanders violated his rights under the First
Amendment by submitting and conspiring to submit frivolous disciplinary
cases against him in retaliation for asserting complaints and grievances
against them. He also alleged that Livingston violated his rights under the
Fifth and Fourteenth Amendment by promulgating Rule 44q, which is both
vague on its face and as applied to him. Walker further alleged that Savers,
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Bockman, Sanders, and Corley violated his rights under the Eighth
Amendment because, by forcing him to work in the shack, they were indifferent
to his health and safety. In addition to his claims under § 1983, Walker also
asserted claims in tort under Texas law, alleging that Watson, Corley, Sanders,
Bockman, and Savers were negligent and grossly negligent in failing to remedy
the conditions in the shack and forcing him to work there. Walker requested
relief in the form of, among other things, damages and an injunction requiring
the TDCJ officials to cease violating his rights, to cease applying Rule 44q, and
to return his typewriter.
      The district court, at the officials’ urging, dismissed all of Walker’s
claims, except those brought against Livingston in his official capacity and
those against the other TDCJ officials in their individual capacities.
      The officials then moved for summary judgment, asserting qualified
immunity. In so doing, they relied on the records from each of Walker’s
disciplinary cases and his grievance, as well as their own affidavits. In his
affidavit, Savers averred that the conditions in the shack were safe, that he
was not aware that Walker had previously reported they were not, and that
TDCJ officials did not force Walker to work outside in inclement weather, but
that he could do so if desired, in which case, he would have been given
appropriate clothing. Savers also intimated that Walker’s own conduct while
repairing the vehicle, not retaliation, was the reason for the disciplinary cases
against him. Savers further stated that he “had no retaliatory motive in
deciding that . . . Walker was guilty of [the] violations” charged in those cases.
      With respect to the conditions of Walker’s confinement in the shack, in
their own affidavits, Bockman, Corley, Watson, and Sanders stated that
Walker had not reported that the conditions in the shack were unsafe to any
of them, that they had never noticed any conditions that were unsafe, and that


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the TDCJ officials had given Walker appropriate clothing. In his affidavit,
Watson added that he had performed monthly inspections of the shack before
Walker’s injury and an inspection immediately after it. He stated that none of
those inspections revealed that the conditions were unsafe. Bockman and
Watson stated in their affidavits, as Savers’s had in his, that Walker was not
required to work outside in inclement weather, but that he could volunteer to
do so. In Sanders’s affidavit, he maintained that, even so, “[t]he shed keeps the
weather off of people who are inside it” and that, even though its “roof may drip
water in a place or two,” any “leaks are minor.” He reiterated that Walker was
permitted to leave the shack if it became too hot or too cold.
      With regard to the initial disciplinary case, Sanders stated in his
affidavit that Walker’s burn appeared minor, that initially he did not want to
go to the infirmary, and that Sanders submitted the disciplinary case because
Walker had acted imprudently by failing to wait until the vehicle cooled before
repairing it, not because Sanders and the other TDCJ officials wanted to
insulate themselves from liability for their own improper conduct.
      With respect to the next three disciplinary cases, Corley stated in his
affidavit that Walker disobeyed instructions to refrain from running or
repairing the vehicle while Corley was on sick leave. He stated, too, that he
prepared and submitted the three disciplinary cases after he heard what
Walker had done. He stated that he did so entirely unaware of Walker’s pre-
suit notice to Savers, suggesting that the cases were not retaliation for that
notice.
      Walker responded to the TDCJ officials’ request for summary judgment
and moved for summary judgment himself, specifically on his § 1983 claims
against Sanders, Corley, and Defendant-Appellant Russell Bockman under
the Eighth Amendment for violating his rights regarding the condition of his


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confinement and against Savers, Sanders, and Corley under the First
Amendment for violating his rights by acting in retaliation.
      The magistrate judge recommended that the district court grant the
officials’ motion for summary judgment and deny Walker’s motion. The district
court adopted the recommendations and dismissed all of Walker’s claims. In so
doing, it noted that Walker had not objected to the recommendations. It then
entered judgment against Walker.
      Several days later, the district court received Walker’s objections to the
magistrate judge’s recommendations, which included additional evidence. The
district court construed his objections as a motion for a new trial and denied it,
reasoning that Walker was attempting to relitigate his claims. Walker then
moved to alter or amend the judgment, asserting that his objections were
timely pursuant to the “prison mailbox rule,” which depends on the date
correspondence was sent by the prisoner, not on the date it was received by the
court. Walker asked the district court to vacate its judgment and consider his
objections. He also appealed. The district court construed Walker’s motion to
alter or amend the judgment as another motion for a new trial and denied it
on the same basis it had previously. It further observed that Walker had failed
to explain why he had not produced the evidence accompanying his objections
before the magistrate judge had considered the TDCJ officials’ and his
respective motions for summary judgment.
      On appeal, another panel of this court vacated the district court’s
judgment and remanded. 2 It instructed the district court to determine whether
Walker’s objections were timely under the prison mailbox rule and, if they
were, to review them de novo. 3

      2 Walker v. Savers, et al., 583 F. App’x 474, 476 (5th Cir. 2014).
      3   Id. at 475.

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      On remand, the magistrate judge determined that the objections were
timely, and the district court considered those objections. After rejecting each,
it again adopted the magistrate judge’s recommendations and dismissed each
of Walker’s claims and re-entered judgment against Walker, who now appeals.
                                               II.
                                      LAW & ANALYSIS
A.    STANDARD OF REVIEW
      We review the grant of a motion for summary judgment de novo,
applying the same standards as the district court. 4 “The 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.” 5
The movant must demonstrate the absence of a genuine issue of material fact,
but it does not need to negate the elements of the nonmovant’s case. 6 If the
movant meets this initial burden, the burden shifts to the nonmovant to
adduce specific evidence to support his claims. 7 The nonmovant’s burden “‘is
not satisfied with ‘some metaphysical doubt as to the material facts,’ by
‘conclusory allegations,’ by ‘unsubstantiated assertions,’ or by ‘only a ‘scintilla’
of evidence.’” 8 All facts and inferences are construed in the light most favorable
to the nonmovant. 9
      Here, the TDCJ officials have asserted a defense of qualified immunity.
“A public official is entitled to qualified immunity unless the plaintiff



      4   Dillon v. Rogers, 596 F.3d 260, 266 (5th Cir. 2010).
      5   FED. R. CIV. P. 56(a).
      6   Duffie v. United States, 600 F.3d 362, 371 (5th Cir. 2010).
      7   Id.
      8   Id. (quoting Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)).
      9   Dillon, 596 F.3d at 266.

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demonstrates that (1) the defendant violated the plaintiff’s constitutional
rights and (2) the defendant’s actions were objectively unreasonable in light of
clearly established law at the time of the violation.” 10 The objective
reasonableness of an official’s conduct is a question of law for the court, not a
matter of fact for the jury. 11
         Generally, a defense of qualified immunity alters the usual burden of
proof for summary judgment. 12 Once an official pleads the defense, the burden
shifts to the plaintiff to rebut the defense by establishing that the official’s
conduct violated clearly established law and that a genuine issue of material
fact exists regarding the reasonableness of the official’s conduct. 13 Although
the plaintiff has the burden of negating qualified immunity at the summary
judgment stage, all inferences are drawn in the plaintiff’s favor. 14
B.       CLAIMS UNDER THE FIRST AMENDMENT
         We begin by considering whether the TDCJ officials violated Walker’s
rights under the First Amendment through retaliation for his complaints and
grievances. Walker asserts that the district court erred in granting the officials’
motion for summary judgment on his claims of retaliation. In particular, he
contends that Sanders, Corley, and Savers engaged in retaliation by
submitting the disciplinary complaints.
         Walker notes that Sanders stated that he submitted the first disciplinary
case for Walker’s unsafe act under Rule 44q, viz. getting burned, “to cover [the


         Waganfeald v. Gusman, 674 F.3d 475, 483 (5th Cir. 2012) (quoting Porter v. Epps,
         10

659 F.3d 440, 445 (5th Cir. 2011)).
         11   Brown v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010).
         12   Id.
         13   Gates v. Tex. Dep’t of Protective and Regulatory Servs., 537 F.3d 404, 419 (5th Cir.
2008).
         14   Brown, 623 F.3d at 253.

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TDCJ officials’] tails” after Walker suggested his burns were caused by the
TDCJ officials’ conduct in failing to repair the shack and making him work
inside it. Walker then notes that Savers stated, at the meeting of the UCC,
that the cases were a response to Walker’s pre-suit notice, not the charges in
the disciplinary cases. Walker also points to evidence that suggests that Corley
submitted the three disciplinary cases for failure to obey, unauthorized use of
tools, and destruction of property on Savers’s initiative, not his own, and that
Savers’s intended retaliation. Walker suggests that, because his property was
confiscated immediately following the meeting of the UCC, the last disciplinary
case for possessing contraband was also retaliation related to the other cases.
      It is beyond dispute that “[a] prison official may not retaliate against or
harass an inmate for complaining through proper channels about a guard’s
misconduct.” 15 An act “motivated by retaliation for the exercise of a
constitutionally protected right is actionable, even if the act, when taken for a
different reason, might have been legitimate.” 16 “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.” 17 To satisfy the
element of causation, the prisoner must show that the adverse act would not
have occurred but for the retaliatory motive. 18 “The inmate must produce
direct evidence of motivation or, the more probable scenario, allege a
chronology of events from which retaliation may plausibly be inferred.” 19 To


      15 Morris v. Powell, 449 F.3d 682, 684 (5th Cir. 2006).
      16   Woods v. Smith, 60 F.3d 1161, 1165 (5th Cir. 1995).
      17   McDonald v. Steward, 132 F.3d 225, 231 (5th Cir. 1998).
      18   Id.
      19   Woods, 60 F.3d at 1166 (internal quotation marks omitted).

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avoid summary judgment on the issue of “but for” causation, a prisoner must
demonstrate a conflict in the evidence “of such quality and weight that
reasonable and fair-minded men in the exercise of impartial judgment might
reach different conclusions.” 20 The adverse action against the prisoner must be
more than de minimis, however. 21 It must instead rise to a level “capable of
deterring a person of ordinary firmness from further exercising his
constitutional rights.” 22
       We begin by considering whether the first disciplinary case constituted
retaliation. As a preliminary matter, Walker’s punishment for his violation of
Rule 44q, the reprimand, was probably de minimis. 23 Even if it exceeded this
threshold, however, it is not clear that there was adequate intent and
causation. As noted by the magistrate judge, Sanders’s remark about “covering
our tails” could be interpreted to mean he wanted to report Walker’s improper
conduct by submitting a disciplinary case. He likely had an obligation to do so
if and when a prisoner’s behavior deviated from acceptable norms. Further,
that original disciplinary case, as related to the injury, closely parallels
Walker’s own account of the events. It also appears to have been submitted
independent of any direction by Savers. At that point, Walker had not sent,
and Savers had therefore not received, the pre-suit notice. As the TDCJ
officials note,“[s]uch evidence does not demonstrate ‘but for’ causation; it
demonstrates that Sanders had a perfectly reasonable, non-retaliatory
motivation for writing Walker the disciplinary case.” Therefore, Walker has


       20 Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 660 (5th Cir. 2012) (quoting Long
v. Eastfield Coll., 88 F.3d 300, 308 (5th Cir. 1996)).
       21   Morris, 449 F.3d at 686.
       22   Id.
       23See Hart v. Hairston, 343 F.3d 762, 764 (5th Cir. 2003) (holding that a punishment
of 27 days of commissary and cell restrictions was not de minimis).

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not established a genuine issue of material fact whether the issuance of the
first disciplinary infraction, or the surrounding chronology of events, evinced a
retaliatory intent, rather than Sanders merely executing his duty to
investigate an accident. 24
      We next consider whether the subsequent three cases constituted
retaliation. There can be no dispute that the act here meets the de minimis
threshold. Intent and causation present a closer question. The district court
examined the records regarding Walker’s grievance of retaliation, including
what appears to be a worksheet that was used to prepare the officials’ response
to the second “step” of Walker’s grievance. This worksheet states that Savers
“admits to writing disciplinary [case] against [Walker].” Savers’s admission is
inconsistent with Corley’s statement that he, not Savers, prepared the
disciplinary cases against Walker. In addition, another portion of the
worksheet contains the following stricken language: “Savers states that he told
you that you were in the Unit Classification Committee because he was the
employee that initiated the investigation that resulted in disciplinary action.”
That language was replaced with a reference to the officials’ response to
Walker’s grievance in the first step, in which they had explained that Savers
was responsible for ensuring that investigations were conducted into
allegations of conduct by offenders. There is an apparent discrepancy between
Corley’s recollections in his affidavit and Savers’s remarks that he “admits to
writing [the] disciplinary case” and that he “initiated the investigation” in the
worksheet. This suggests that Corley’s purported reasons for submitting the
disciplinary cases were merely pretexts, which concealed Savers’s act of




      24   See McDonald, 132 F.3d at 231.

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retaliation. 25 This creates a genuine issue of material fact regarding whether
the three cases constituted retaliation.
      We also consider the acts taken by the UCC, including its reassignment
of Walker to work elsewhere and its further reduction of his line class. The
magistrate judge suggested that Walker had failed to show that being
reassigned to work elsewhere was more than a de minimis act. Yet, according
to Walker, Savers indicated that he had “initiated all this” because of Walker’s
pre-suit notice. This plainly suggests more than the meeting of the UCC.
Instead, it includes the three disciplinary cases, the hearing on which occurred
immediately prior to the meeting of the UCC, and the consequences. Even if
being reassigned and downgraded were de minimis, the                    consequences of
Walker’s conviction in those cases was not de minimis. 26 Additionally,
initiating the disciplinary cases themselves may have itself constituted
sufficient acts of retaliation. 27 These acts, taken together, more than exceed
the threshold.
      After reviewing Walker’s objections following remand, the district court
specifically emphasized that Savers’s remark at that meeting was not
retaliation because (1) Walker’s pre-suit notice constituted a threat, and (2)
Walker was not entitled to threaten a prison official. Viewing the evidence in
the light most favorable to Walker, Savers’s remark at the meeting of the UCC
reflects an intent of retaliation and, in addition, supports Walker’s contention
that the act would not have occurred but for that intent. 28 To begin with, the
pre-suit notice did not contain any overt threats. To the contrary, it merely cast


      25   See id.
      26   See Morris, 449 F.3d at 686.
      27   See Woods v. Smith, 60 F.3d 1161 (5th Cir. 1995).
      28   See McDonald, 132 F.3d at 231.

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aspersions on the reputation and honesty of the officials, expressed strong
doubts about their effectiveness, and unequivocally indicated that Walker was
injured because of the officials’ conduct. The pre-suit notice is exactly what it
purports to be, not a threat. Its contents, therefore, do not give Savers a
legitimate motive for punishing Walker. We note, therefore, that Walker has
raised a genuine issue of material fact as to whether the reassignment and
downgrade, as well as the three disciplinary cases, constituted retaliation. 29
      We now consider the confiscation of Walker’s typewriter and the
resulting disciplinary case. The de minimis threshold is again clearly met.
These acts, therefore, were sufficient to constitute retaliation. Walker relies on
what he was told by the TDCJ officials who confiscated his property,
specifically their assertions that they did so on Savers’s orders. This, he
asserts, establishes intent and causation. The district court, however, rejected
the officials’ statements as too vague and “susceptible of innocuous
interpretation,” instead emphasizing that the officials were at liberty to
confiscate Walker’s property because it was contraband. But even an official’s
otherwise legitimate act, here confiscating Walker’s property, may be
retaliation if the motive is not legitimate. 30 It also does not matter that the
officials who confiscated the property were not more explicit in their reasons
for doing so. Retaliation may be inferred from a chronology of events. 31 Here,
the officials confiscated Walker’s property immediately following a meeting in
which Savers stated broadly that “all of this” was retaliation for Walker’s pre-
suit notice. This suggests intent. When, combined with the officials’ intimation
that they were carrying out Savers’s orders, it also suggests causation.


      29   See Duffie, 600 F.3d at 371; McDonald, 132 F.3d at 231.
      30   See Woods, 60 F.3d at 1165.
      31   See id.; Allen v. Thomas, 388 F.3d 147, 150 (5th Cir. 2004).

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Therefore, Walker has identified a genuine issue of material fact as to whether
the confiscation and resulting disciplinary case constituted retaliation. 32
       All told, there are genuine issues of material fact that preclude summary
judgment on Walker’s claims of retaliation, at least with regard to whether the
TDCJ officials possessed the necessary intent and whether there is sufficient
causation. These disputes are appropriately left to a finder of fact.
C.     CLAIMS UNDER THE FIFTH AND FOURTEENTH AMENDMENTS
       We next consider whether the TDCJ officials violated Walker’s right of
due process under Fifth and Fourteenth Amendments by promulgating and
enforcing Rule 44q. Walker asserts that the district court erroneously granted
Livingston’s motion for summary judgment on Walker’s claims that Rule 44q
is void for vagueness both on its face and as applied to him. He claims that
Rule 44q is void for vagueness on its face because it does not give a prisoner
adequate notice of the prohibited conduct and gives prison officials unfettered
discretion in applying it. Walker also avers that it is void for vagueness as
applied to him, contending that there is a genuine issue of material fact as to
whether he acted unsafely in violation of Rule 44q by repairing the utility
vehicle while its exhaust pipe was hot, given that the vehicle’s service manual
required him to do just that.
       In general, “an enactment is void for vagueness if its prohibitions are not
clearly defined.” 33 Such enactments fail to provide fair warning to the
innocent. 34 “[B]ecause we assume that man is free to steer between lawful and
unlawful conduct, we insist that laws give the person of ordinary intelligence
a reasonable opportunity to know what is prohibited, so that he may act


       32   See Duffie, 600 F.3d at 371; McDonald, 132 F.3d at 231.
       33   Grayned v. City of Rockford, 408 U.S. 104, 108 (1972).
       34   Id.

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accordingly.” 35 For this reason, “laws must provide explicit standards for those
who apply them.” 36 “A vague law impermissibly delegates basic policy matters
to policemen, judges, and juries for resolution on an ad hoc and subjective
basis, with the attendant dangers                        of arbitrary and discriminatory
application.” 37 Likewise, an enactment that is vague has a tendency to inhibit
the exercise of free speech because “[u]ncertain meanings inevitably lead
citizens to steer far wider of the unlawful zone than if the boundaries of the
forbidden areas were clearly marked.” 38
          We begin with Walker’s assertion that Rule 44q is facially void for
vagueness. “In a facial challenge to the . . . vagueness of a law, [our] first task
is to determine whether the enactment reaches a substantial amount of
constitutionally protected conduct.” 39 Accordingly, a law that does not
implicate constitutionally protected conduct should be upheld only if it is
impermissibly vague in all possible applications. 40 In contrast, a law that
inhibits the exercise of constitutionally protected rights should only be upheld
if it survives a more stringent test, because “[t]he degree of vagueness that the
Constitution tolerates—as well as the relative importance of fair notice and
fair enforcement—depends in part on the nature of the enactment.” 41 In
addition, such a challenge is appropriate only on an allegation that the law is
vague “not in the sense that it requires a person to conform his conduct to an

          35   Id.; accord Adams v. Gunnell, 729 F.2d 362, 368 (5th Cir. 1984).
          36   Grayned, 408 U.S. at 108.
          37   Id. at 108-09.
          38   Id. at 109 (quoting Baggett v. Bullitt, 377 U.S. 360, 372 (1964)).
          39   Village of Hoffman Estates, v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494
(1982).
          40   Id. at 494-95; Adams, 729 F.2d at 369.
          41   Village of Hoffman Estates, 455 U.S. at 498-99; see Adams, 729 F.2d at 369.

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                                           No. 15-10364

imprecise but comprehensible normative standard, but rather in the sense that
no standard of conduct is specified at all.” 42
        Walker’s facial challenge to Rule 44q focuses on the preciseness of the
standard. Yet, because he does not suggest that Rule 44q implicates any
constitutionally protected conduct, his challenge will prevail only if it is vague
in all applications. 43 Rule 44q, which prohibits “[e]ngaging in negligent
behavior or in an unsafe act that results in injury[,]” is imprecise, but
nonetheless sets a minimum standard. 44 Walker has not demonstrated that a
person of ordinary intelligence would not know what conduct would qualify as
negligent or unsafe. Neither has he demonstrated that the TDCJ officials are
unfettered in how they enforce Rule 44q. 45 Walker offers nothing that would
create a genuine issue of material fact precluding summary judgment, 46 and
so we must reject his contention that it is void for vagueness on its face.
        But Walker also claims that Rule 44q is void for vagueness as applied to
him. We note, however, that the reprimand Walker received does not amount
to a cognizable deprivation of any liberty interest. A prisoner is only entitled
to the protections of due process when the deprivation of his liberty interest
constitutes an “atypical and significant hardship on the inmate in relation to
ordinary incidents of prison life.” 47 A mere reprimand is not enough, so the




        Ferguson v. Estelle, 718 F.2d 730, 735 (5th Cir. 1983) (quoting Coates v. City of
        42

Cincinnati, 402 U.S. 611, 614 (1971)).
        43   Village of Hoffman Estates, 455 U.S. at 494-95.
        44   See Ferguson, 718 F.2d at 735.
        45   See Adams, 729 F.2d at 368.
        46   See Duffie, 600 F.3d at 371; see also Village of Hoffman Estates, 455 U.S. at 494-
95.
        47   Sandin v. Conner, 515 U.S. 472, 483-84 (1995).

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                                       No. 15-10364

district court did not err in rejecting Walker’s claim that Rule 44q was void for
vagueness, either as applied to him or on its face.
D.     CLAIMS UNDER THE EIGHTH AMENDMENT
       Last, we consider whether the TDCJ officials violated Walker’s rights
under the Eighth Amendment by failing to remedy the conditions of his
confinement, and in so doing, we also consider the TDCJ officials’ defense of
qualified immunity. Walker asserts that the district court erred in permitting
the officials’ defense of qualified immunity.
       To establish an Eighth Amendment violation based on the conditions of
his confinement, a prisoner must demonstrate that a prison official was
deliberately indifferent to conditions that resulted in the denial of “the minimal
civilized measure of life’s necessities.” 48 To establish deliberate indifference,
the prisoner must show that the prison official knew of and disregarded an
excessive risk to inmate health or safety, 49 viz. that (1) the official was aware
of facts from which the inference could be drawn that a substantial risk of
serious harm exists and (2) the official drew the inference. 50 “Deliberate
indifference is an extremely high standard to meet.” 51
       Walker alleged numerous defects in the shack, but he blamed only the
inadequate light and slippery floor for his injury. Alone, these were not the
only conditions that resulted in the risk to his health and safety. Instead, it
was those conditions, combined with his proximity to the hot exhaust pipe of



        Hernandez v. Velasquez, 522 F.3d 556, 560 (5th Cir. 2008) (quoting Farmer v.
       48

Brennan, 511 U.S. 825, 834 (1994)); accord Woods v. Edwards, 51 F.3d 577, 581 (5th Cir.
1995).
       49   Farmer, 511 U.S. at 837.
       50   Id.
       51Brewster v. Dretke, 587 F.3d 764, 770 (5th Cir. 2009) (internal quotation marks
and citation omitted).

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                                           No. 15-10364

the utility vehicle, that resulted in the risk. Even if the officials had been aware
of the poor light and the slippery floor, there is nothing to suggest that any of
the officials were aware that Walker was repairing a vehicle while it was
running and its exhaust pipe was hot. Unaware of the substantial risk of
serious harm posed by the combination of poor light, slippery floor, and hot
exhaust pipe, the officials cannot be accused of disregarding it. 52
       Additionally, Walker has presented nothing to suggest that any of the
officials were responsible for him suffering any exposure to the elements in the
shack that resulted in the denial of “the minimal civilized measure of life’s
necessities.” 53 He has not alleged any specific instance in which one of the
officials directed him to work in the shack during extremely hot or cold weather
or in excessive precipitation or, if so, how often and what it was like. He has
merely alleged that the shack was insufficient to protect him from the
elements. This is not enough. Without dispute, the officials may have also
asked him to work outside under the branches of a tree. The tree, too, would
be insufficient to protect him from the elements. But, unless he alleged that he
was forced to and actually did work under the tree in harsh conditions, the
officials would not have created conditions from which he would be protected
by his rights under the Eighth Amendment. 54 The district court therefore
properly rejected Walker’s claim regarding the conditions of his confinement. 55




       52   See Farmer, 511 U.S. at 837.
       53   Hernandez, 522 F.3d at 560.
       54 Palmer v. Johnson, 193 F.3d 346, 352-53 (5th Cir. 1999) (requiring a prisoner to
show that exposure to the cold and lack of acceptable means to dispose of bodily waste were
sufficiently serious by resulting in the denial of the minimal civilized measures of life’s
necessities).
       55   See Waganfeald, 674 F.3d at 483; Brown, 623 F.3d at 253.

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                                     No. 15-10364

E.     CLAIMS IN TORT
       The district court declined to exercise supplemental jurisdiction because
it “ha[d] dismissed all claims over which it ha[d] original jurisdiction.” 56
Because the district court erred in dismissing some of those claims over which
it had original jurisdiction, its articulated basis for dismissing the other claims
no longer exists. We therefore reverse and remand the district court’s dismissal
of Walker’s tort claims. On remand, the district court may, of course, consider
whether there is some other basis for it to decline to exercise supplemental
jurisdiction over those claims.
                                         III.
                                     CONCLUSION
       For the forgoing reasons, we AFFIRM in part, as to Walker’s claims
under the Eighth Amendment and as to Walker’s claims in tort, and
REVERSE in part, as to Walker’s claims under the First Amendment and his
claims under the Fifth and Fourteenth Amendments.




       56   28 U.S.C.§ 1367(c)(3).

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