La'Derrick Edwards v. Barry Martin, et al

Filing

UNPUBLISHED OPINION FILED. [15-11245 Affirmed] Judge: EHJ, Judge: JLW, Judge: EBC. Mandate pull date is 05/23/2017; denying motion to appoint counsel filed by Appellant Mr. La'Derrick Edwards [8121392-2] [15-11245]

Case: 15-11245

Document: 00513976321

Page: 1

Date Filed: 05/02/2017

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

No. 15-11245
Summary Calendar

FILED
May 2, 2017
Lyle W. Cayce
Clerk

LA’DERRICK EDWARDS, also known as La’Derrick Markeith Edwards,
Plaintiff-Appellant
v.
BARRY MARTIN, Head Warden, Texas Department of Criminal Justice,
Clements Unit; DUSTIN OWENS, Correctional Officer IV; WILBUR KEMPH,
Captain; VICKIE BROWN, Substitute Counsel; LORIE DAVIS, Director,
Texas Department of Criminal Justice, Correctional Institutions Division,
Defendants-Appellees
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 2:15-CV-306
Before JONES, WIENER, and CLEMENT, Circuit Judges.
PER CURIAM: *
La’Derrick Edwards, Texas prisoner # 1613521, appeals the district
court’s dismissal of his 42 U.S.C. § 1983 civil rights complaint pursuant to 28
U.S.C. §§ 1915A and 1915(e)(2) and 41 U.S.C. § 1997e(c)(1) for failure to state

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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a claim upon which relief could be granted and as frivolous. He also moves for
the appointment of counsel.
The complaint named as defendants Texas Department of Criminal
Justice (TDCJ) Director William Stephens, who has since been replaced as a
party by Lorie Davis and is hereinafter referred to as “Davis”; Warden Barry
Martin; Captain Wilbur Kemph; substitute counsel Vickie Brown; and officer
Dustin Owens. Edwards alleged in the complaint that his constitutional rights
were violated when Owens confiscated without proper investigation several
items of his personal property, including 11 magazines, a radio, and a fan, and
failed to rewrite Edwards’s disciplinary case after the fan and radio were
returned to him; when Kemph found him guilty at a disciplinary hearing
regarding the contraband; when Brown failed to represent him effectively at
the hearing; and when Davis and Martin failed to intervene after being notified
of their subordinates’ actions. He sought declaratory, monetary and injunctive
relief.
Where, as here, a district court has dismissed a prisoner’s complaint
pursuant to § 1915(e)(2)(B)(i) and (ii), § 1915A, and § 1997e(c), the dismissal is
reviewed de novo. See Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir. 2005). “To
determine if a complaint fails to state a claim, we apply the same standard of
review applicable to dismissals made pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure and will uphold a dismissal if, taking the plaintiff's
allegations as true, it appears that no relief could be granted based on the
plaintiff’s alleged facts.” Samford v. Dretke, 562 F.3d 674, 678 (5th Cir. 2009)
(internal quotation marks and citation omitted). We will “not accept as true
conclusory allegations, unwarranted factual inferences, or legal conclusions.”
Gentilello v. Rege, 627 F.3d 540, 544 (5th Cir. 2010) (internal quotation marks
and citation omitted). A complaint is considered frivolous if it has no “arguable

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basis in law or fact.” Samford, 562 F.3d at 678 (internal quotation marks and
citation omitted).
Edwards’s argument that the district court erred by considering his
claims against only two of the defendants is belied by the record because the
district court adopted the magistrate judge’s report and recommendation,
which addressed Edwards’s claims against all of the defendants. See 28 U.S.C.
§ 636(b)(1).
Edwards also argues that Brown violated his Fourteenth Amendment
rights by failing to represent him effectively and by preventing him from
calling a witness. However, Edwards has not demonstrated that the district
court erred in concluding that he failed to state a § 1983 claim against Brown
because a counsel substitute does not act under color of state law. See Banuelos
v. McFarland, 41 F.3d 232, 234 (5th Cir. 1995).
Regarding Martin and Davis, Edwards argues that his constitutional
rights were violated when they failed to investigate adequately after being
informed by Edwards about their subordinates’ actions.

However, such

allegations are insufficient to establish supervisory liability. See Roberts v.
City of Shreveport, 397 F.3d 287, 292 (5th Cir. 2005); Thompson v. Upshur
Cnty., 245 F.3d 447, 459 (5th Cir. 2001).
Edwards contends that Kemph violated his due process rights at the
disciplinary hearing by not allowing him to call a witness to verify his
ownership of the radio and fan or to present magazine receipts as evidence of
his ownership. He asserts that Owens stated at the disciplinary hearing that
the magazines were confiscated because they had tape on them. He also argues
that Owens violated his First and Fourteenth Amendment rights by not
investigating before confiscating his property, by failing to verify that (1) he
had receipts for some of his magazines, (2) there were mailroom logs regarding

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the magazines for which he did not have receipts, (3) he had received the radio
and fan from the Harvins Unit, and (4) the mailroom had applied tape to his
magazines.
Because Edwards did not have a protectable property interest in his
custodial classification and because he did not allege any facts supporting his
speculation that his parole could have been affected, these allegations do not
establish a due process violation remediable under § 1983. See Gentilello, 627
F.3d at 544; Neals v. Norwood, 59 F.3d 530, 533 (5th Cir. 1995). Additionally,
any harm caused by Kemph’s failure to call the witness and Owens’s failure to
investigate the radio and fan was cured when the radio and fan were returned
shortly after the hearing. Regarding the magazines, Edwards was provided
the opportunity to challenge the placement of tape on the magazines at the
disciplinary hearing and during prison grievance procedures, and his
allegations acknowledge that it was against prison policy for his magazines to
have tape on them. See Wolff v. McDonnell, 418 U.S. 539, 564-66 (1974).
Kemph’s and Owens’s alleged refusal to consider the magazine receipts or
otherwise investigate his ownership of the magazines did not violate his due
process rights because his ability to prove ownership of the magazines was not
at issue. Although Edwards asserts that Owens broke state prison rules and
regulations by failing to rewrite his case, he is not entitled to relief under
§ 1983 on this basis. See Jackson v. Cain, 864 F.2d 1235, 1251 (5th Cir. 1989).
In light of the foregoing, the appointment of counsel is not warranted,
see Ulmer v. Chancellor, 691 F.2d 209, 212, 213 (5th Cir. 1982), and the district
court’s judgment is AFFIRMED.

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