United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit

FILED February 6, 2023 No. 21-50578 Lyle W. Cayce Clerk

Richard Luna,

Plaintiff—Appellant,

versus

Lorie Davis, Director, Texas Department of Criminal Justice, Correctional Institutions Division; Felipe Gonzalez, Warden, Terrell Unit, Texas Department of Criminal Justice - Correctional Institutions Division; Bryan Collier, Executive Director, Texas Department of Criminal Justice; Ar'Lisa Simon-Hastings, Chief Classification, Terrell Unit, Texas Department of Criminal Justice - Correctional Institutions Division,

Defendants—Appellees.

Appeal from the United States District Court for the Western District of Texas USDC No. 1:20-CV-685

Before Richman, Chief Judge, and King and Higginson, Circuit Judges. Per Curiam: Plaintiff-appellant Richard Luna appeals the entry of summary judgment dismissing his First and Eighth Amendment claims against defendant-appellee Ar’Lisa Simon-Hastings. We REVERSE in part, Case: 21-50578 Document: 00516636674 Page: 2 Date Filed: 02/06/2023

No. 21-50578

AFFIRM the district court’s summary judgment dismissal of Luna’s First Amendment retaliation claim, and REMAND for further proceedings. I. In May 2020, Luna, proceeding pro se, filed a lawsuit in Texas state court against several officials at the Texas Department of Criminal Justice, where he remains an inmate. He alleged, inter alia, violations of his First and Eighth Amendment rights under 42 U.S.C. § 1983 arising out of a housing transfer and subsequent physical altercation. According to Luna, he had previously been sexually harassed and threatened by inmates in boot camp housing; after asking the sergeant for a transfer to the main building on account of the harassment and threats, he was assigned housing in the main building. After several months, however, Simon-Hastings reassigned Luna to boot camp housing on January 7, 2020, and Luna was assaulted in boot camp housing that same day. Luna further alleged that, when Simon-Hastings saw him following the assault, she told him that the assault would teach him a lesson about going over her head with housing moves. Defendants removed the case to federal court, whereupon the district court granted their motion to dismiss all of Luna’s claims except for two: Luna’s First Amendment retaliation and Eighth Amendment failure-to- protect claims against Simon-Hastings. On June 9, 2021, the district court granted Simon-Hastings’ motion for summary judgment on qualified immunity grounds, concluding that Luna’s proffered evidence was insufficient to raise a genuine dispute of material fact concerning whether Simon-Hastings was aware that Luna faced a substantial risk of serious harm when she authorized his transfer back to boot camp housing. The district court dismissed Luna’s remaining claims with prejudice, which Luna appealed.

2 Case: 21-50578 Document: 00516636674 Page: 3 Date Filed: 02/06/2023

No. 21-50578

II. We revie