Kenneth Lockamy v. Chequita Dunbar, et al

Filing

UNPUBLISHED OPINION FILED. [10-40126 Affirmed ] Judge: TMR , Judge: JLD , Judge: EBC Mandate pull date is 11/19/2010 [10-40126]

Kenneth Lockamy v.Case: 10-40126et Document: 00511278948 Chequita Dunbar, al

Page: 1 Date Filed: 10/29/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 10-40126 S u m m a r y Calendar October 29, 2010 Lyle W. Cayce Clerk

K E N N E T H A. LOCKAMY, P la in t if f -A p p e lla n t v. C H A Q U I T A DUNBAR; TAMMY SHARP; UNIDENTIFIED OFFICERS; JOHN P R Y O R , Individually and Officially, D e fe n d a n t s -A p p e lle e s

A p p e a l from the United States District Court fo r the Eastern District of Texas U S D C No. 5:08-CV-150

B e fo r e REAVLEY, DENNIS, and CLEMENT, Circuit Judges. P E R CURIAM:* K e n n e t h A. Lockamy, Texas prisoner # 1313595, appeals the district c o u r t's grant of the defendants' summary judgment in his 42 U.S.C. § 1983 civil s u it in which he claimed that prison officials had violated his due process and c o n s t it u t io n a l rights by (1) denying him access to the courts, (2) engaging in a c a m p a ig n of retaliation, (3) interfering with his rights under the Religious Land U s e and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc et seq., and

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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Case: 10-40126 Document: 00511278948 Page: 2 Date Filed: 10/29/2010 No. 10-40126 (4 ) refusing to allow an appeal after the mailing of correspondence was denied. On appeal, Lockamy also argues that the district court erred in concluding that t h e defendants were entitled to qualified immunity and in denying his motion fo r the appointment of counsel. A district court's grant of summary judgment is reviewed de novo. Berquist v. Washington Mut. Bank, 500 F.3d 344, 348 (5th Cir. 2007). This court v ie w s all facts and evidence in the light most favorable to the non-moving party. United Fire & Cas. Co. v. Hixson Bros, 456 F.3d 283, 285 (5th Cir. 2006). Even if this court disagrees with the reasons given by the district court to support s u m m a r y judgment, this court "may affirm the district court's ruling on any g r o u n d s supported by the record." Berquist, 500 F.3d at 349. L o c k a m y cannot demonstrate that the district court abused its discretion in allowing the defendants an extension of time to file their summary judgment m o t io n because he does not even allege that he was prejudiced in any way by the m o d ific a t io n in schedule. See Huval v. Offshore Pipelines, Inc., 86 F.3d 454, 458 (5 t h Cir. 1996). Moreover, Lockamy failed to even request a Federal Rule of C iv il Procedure 56(f) continuance for further discovery in the district court and d id not provide the district court with specific facts explaining his inability to m a k e a substantive response to the defendants' summary judgment motion and d e m o n s t r a t in g how additional time for discovery would have allowed him to p r e s e n t a genuine issue of material fact. Washington v. Allstate Ins. Co., 901 F .2 d 1281, 1285 (5th Cir. 1990). T o prevail on a denial of access to the courts claim, the prisoner must show t h a t he was prejudiced by the alleged violation. Lewis v. Casey, 518 U.S. 343, 3 5 1 -5 2 (1996). In order to demonstrate prejudice, a prisoner must show that his a b il it y to pursue a nonfrivolous legal claim was hindered by the actions of the d e fe n d a n t s . Christopher v. Harbury, 536 U.S. 403, 415 (2002). Even if the most e g r e g io u s of Lockamy's allegations are true, he provides no concrete evidence to d e m o n s t r a t e that defendants' actions caused him prejudice by hindering the 2

Case: 10-40126 Document: 00511278948 Page: 3 Date Filed: 10/29/2010 No. 10-40126 p r o g r e s s io n of his current cases or the pursuit of future litigation, particularly in light of the fact that he had two other cases pending at the same time as this a p p e a l. See Lewis, 518 U.S. at 349. U n d e r the RLUIPA, the Government is prohibited from imposing a s u b s t a n t ia l burden on a prisoner's exercise of religious freedom unless there is a compelling governmental interest and the burden is the least restrictive means o f furthering that interest. § 2000cc-1. Therefore, in order to make a claim u n d e r RLUIPA, Lockamy must show that the prison's regulations imposed a s u b s t a n t ia l burden on his exercise of religious activity. Adkins v. Kaspar, 393 F .3 d 559, 564-65 (5th Cir. 2004). Lockamy argues that defendants violated his r ig h t to the free exercise of religion when they refused to mail pages removed fr o m a religious magazine and labeled them as contraband. However, according t o The Texas Department of Criminal Justice Offender Orientation Handbook, " c o n t r a b a n d " is "any item altered from its original condition." Lockamy

a d m it t e d that the pages had been altered because they were removed from a p a m p h le t and had been written on. A lt h o u g h the RLUIPA imposes a strict scrutiny of prison regulations, la w m a k e r s were mindful that discipline, order, safety, and security are urgent in penal institutions and anticipated that courts would apply the RLUIPA test " w it h due deference to the experience and expertise of prison and jail a d m in istra to rs in establishing necessary regulations and procedures to maintain g o o d order, security and discipline, consistent with consideration of costs and lim it e d resources." Cutter v. Wilkinson, 544 U.S. 709, 722-23 (2005). The

p r is o n 's policy on rejecting the mailing of contraband is related to the legitimate p e n o lo g ic a l interests of order, discipline, and security. Lockamy does not allege t h a t prison's policies prevented him from practicing his faith or forced him to m o d ify his religious activities. Accordingly he has not made a viable claim that

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Case: 10-40126 Document: 00511278948 Page: 4 Date Filed: 10/29/2010 No. 10-40126 t h e defendants violated his First Amendment right to the free exercise of r e lig io n . See Adkins, 393 F.3d at 564-65. L o c k a m y 's assertion that the defendants violated his due process rights by r e fu s in g to initiate an appeals process regarding the rejection of mail is equally w it h o u t merit. According to the Offender Orientation Handbook, complaints of r e je c t e d mail are non-grievable and must be sent for review by the Director's R e v ie w Committee (DRC). Lockamy does not allege that he even attempted to in it ia te an appeals process by following the rules and sending a written notice t o the DRC. T o state a retaliation claim, "a prisoner must allege (1) a specific c o n s t it u t io n a l right, (2) the defendant's intent to retaliate against the prisoner fo r his or her exercise of that right, (3) a retaliatory adverse act, and (4 ) causation." Jones v. Greninger, 188 F.3d 322, 324-25 (5th Cir. 1999). "Filing g r ie v a n c e s and otherwise complaining about the conduct of correctional officers t h r o u g h proper channels are constitutionally protected activities, and prison o ffic ia ls may not retaliate against inmates for engaging in such protected a c t iv it ie s ." Reese v. Skinner, 322 F. App'x 381, 383 (5th Cir. 2009) (citing Morris v . Powell, 449 F.3d 682, 684 (5th Cir. 2006)). After showing invocation of a c o n s t it u t io n a l right, the prisoner must "produce direct evidence of motivation" o r "allege a chronology of events from which retaliation may plausibly be in fe r r e d ." Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995) (internal quotation m a r k s and citations omitted). Furthermore, the retaliatory adverse act must be m o r e than de minimis to state a viable retaliation claim; the act must be " c a p a b le of deterring a person of ordinary firmness from further exercising his c o n s t it u t io n a l rights." Morris, 449 F.3d at 686. A showing of retaliation places a heavy burden on prisoners, and mere c o n c lu s o r y allegations are not sufficient. Woods, 60 F.3d at 1166. Lockamy c a n n o t meet the high burden. Lockamy does not provide this court with any 4

Case: 10-40126 Document: 00511278948 Page: 5 Date Filed: 10/29/2010 No. 10-40126 e v id e n c e to suggest that any retaliatory acts were more than inconsequential or d e minimis, and any such acts have not prevented Lockamy from exercising his c o n s t it u t io n a l rights. See Morris, 449 F.3d at 685-86. I n the summary judgment context, a government official need only plead q u a l i f i e d immunity, which then shifts the burden to the plaintiff. Michalik v. H e r m a n n , 422 F.3d 252, 262 (5th Cir. 2005). The plaintiff must rebut the d e f e n s e by establishing that the official's allegedly wrongful conduct violated c le a r ly established law and that genuine issues of material fact exist regarding t h e reasonableness of the official's conduct. Id. Lockamy has not shown that the d e fe n d a n t s violated his constitutional rights, and he does not discuss which laws t h e defendants allegedly unreasonably ignored. He relies on theory, speculation, a n d mere conclusory allegations, which are not sufficient to discharge his burden o f overcoming the defendant's defense of qualified immunity. See id. A district court may appoint counsel in a § 1983 case if exceptional c ir c u m s t a n c e s exist. Branch v. Cole, 686 F.2d 264, 266 (5th Cir. 1982). The e x is t e n c e of exceptional circumstances depends upon the type and complexity of t h e case and the abilities of the person litigating the case. Id. This court reviews a district court's denial of a motion for appointment of counsel under the abuse o f discretion standard. Cupit v. Jones, 835 F.2d 82, 86 (5th Cir. 1987) (citations o m itte d ). T h e denial of Lockamy's appointment of counsel motion was not an abuse o f discretion. Lockamy's constitutional issues are not particularly complex, and L o c k a m y has proven himself more than capable of competently proceeding w it h o u t the assistance of counsel. See id. Accordingly, the judgment of the d is t r ic t court is AFFIRMED.

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