Case: 07-60375 Document: 00511122897 Page: 1 Date Filed: 05/26/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 26, 2010
No. 07-60375
Summary Calendar Lyle W. Cayce
Clerk
WILLIAM T BUSICK
Plaintiff-Appellant
v.
JOHN NEAL; E AVERY ROLLINS; BRENDA PERRY; MRS CHARLES ESCO;
CHUCK MCNEAL; TOBY TROWBRIDGE; ARTHUR THOMPSON; MRS FRED
ESCO; CLINT KINER; JANIKA MEOSHA CHEERS; JOHN A EMFREY; MEL
COXWELL
Defendants-Appellees
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:02-CV-483
Before JOLLY, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
William T. Busick, Mississippi prisoner # 84027, brought this civil action
pursuant to 42 U.S.C. § 1983, as well as other federal and state law, against:
(1) the City of Madison, Mississippi, and six members of the Madison Police
Department, Chief of Police Gene Waldrup, Lieutenant Eric C. Palmer,
Lieutenant Catherine Reese, Investigator Mike Brown, Officer Stephen Patrick,
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
Case: 07-60375 Document: 00511122897 Page: 2 Date Filed: 05/26/2010
No. 07-60375
and Officer Paul Bunch (the Madison City Defendants); (2) Special Agent David
Scott Dufour and Special Agent E. Avery Rollins of the Federal Bureau of
Investigation; (3) Lieutenant David W. Ruth and Detective Jeff N. Robertson of
the Brandon, Mississippi, Police Department (the Brandon Defendants);
(4) Detective John Neal of the Ridgeland, Mississippi, Police Department;
(5) Madison County, Mississippi, Sheriff Toby Trowbridge, Jr., and seven
members of the Madison County Sheriff’s Department, Madison County
Detention Center Administrator Jed Womack, Madison County Detention
Center Warden Arthur Thompson, Deputy Sheriff Jim Frazier, Lieutenant Clint
Kiner, Lieutenant Brenda Perry, Mail Handler Mrs. Charles Esco, and Booking
Officer Janika Meosha Cheers (the Madison County Defendants); and (6) ADA
Emfrey and ADA Coxwell. Busick appeals the district court’s dismissal of some
of his claims and the magistrate judge’s dismissal and grant of summary
judgment on the remainder of his claims.
Busick argues that the magistrate judge erred by dismissing his claims
against Detective Neal. He maintains that he stated a viable claim against
Detective Neal for malicious prosecution based upon Detective Neal’s charging
him with credit card fraud and falsely testifying at a preliminary hearing after
Detective Neal promised that he would not be charged with credit card fraud if
he gave Detective Neal information about another suspect. He contends that the
malicious prosecution claim is not barred by Heck v. Humphrey, 512 U.S. 477
(1994), because the credit card fraud charge was nolle prossed. He maintains
that he was harmed by Detective Neal’s actions because the additional charge
against him caused him to be held on excessive bail. He asserts that the credit
card fraud charge against him somehow caused him to be subjected to excessive
force while in the custody of the Mississippi Department of Corrections following
his conviction on a separate burglary charge. He further argues that his
allegations against Detective Neal set forth a viable claim under Mississippi law.
For the first time on appeal, Busick contends that his allegations against
2
Case: 07-60375 Document: 00511122897 Page: 3 Date Filed: 05/26/2010
No. 07-60375
Detective Neal stated a viable retaliation claim because Detective Neal brought
the credit card fraud charge against him only because of his civil litigation
against other law enforcement officers.
Busick acknowledges that the credit card fraud charge against him was
nolle prossed; accordingly, the statement he made to Detective Neal was not
used against him at trial, and Busick thus cannot raise a Fifth Amendment
claim against Detective Neal for making an unkept promise of leniency. See
Murray v. Earle, 405 F.3d 278, 285 n.11 (5th Cir. 2005). Furthermore, Busick’s
allegations against Detective Neal do not shock the conscience and cannot
support a Fourteenth Amendment claim; accepting Busick’s allegations and
averments as true, Detective Neal’s broken promise resulted only in there being
a credit card fraud charge pending against Busick for a time while he was being
held on other charges and then being dismissed. See Stokes v. Gann, 498 F.3d
483, 485 (5th Cir. 2007). To the extent that Busick sought to raise a general
malicious prosecution claim independent from a claim based upon a specific
constitutional amendment, no such federal law claim exists. See Castellano v.
Fragozo, 352 F.3d 939, 949-61 (5th Cir. 2003) (en banc).
While Busick notes that bail was set on the credit card fraud charge,
Busick’s allegations show that he was also being held on a burglary charge and
later a burglary conviction during the entire time that the credit card fraud
charge was pending. As the credit card fraud charge was dismissed and Busick
was not ever detained on that charge, Busick did not allege that he was damaged
by Detective Neal’s actions, and, therefore, his Mississippi law claim of malicious
prosecution failed to state a claim upon which relief may be granted. See Tebo
v. Tebo, 550 F.3d 492, 498-99 (5th Cir. 2008).
While Busick argues in this court that Detective Neal initiated the
prosecution of the credit card fraud charge against him in retaliation for his civil
litigation against other law enforcement officers, he did not raise this retaliation
claim in district court. As this claim was not raised in the district court, it
3
Case: 07-60375 Document: 00511122897 Page: 4 Date Filed: 05/26/2010
No. 07-60375
cannot be considered on appeal. See Leverette v. Louisville Ladder Co., 183 F.3d
339, 342 (5th Cir. 1999).
Busick argues that the magistrate judge erred by granting summary
judgment on his claims that the Madison County Defendants violated his
constitutional rights by denying him access to the courts. He maintains that his
access to the courts was denied because he was allowed to use the legal library
at the Madison County Detention Center only once for 30 minutes during the 11
months he was incarcerated at that facility. He contends that his lack of access
to the law library prejudiced him in three civil suits in the district court: the
present case; Busick v. City of Magee, No. 3:00-CV-327; and Busick v. Lamar
County, No. 2:02-CV-90. He asserts that he would have maintained claims
against certain defendants in City of Magee if he had access to the law library,
that his lack of access to the law library regarding the Lamar County case
somehow caused the Mississippi Department of Corrections to subsequently
change his time sheets to show that he is serving a 25-year sentence as a
habitual offender, and that his lack of access to the law library prevented him
from prevailing on his claims against Special Agent Dufour, Special Agent
Rollins, the City of Madison Defendants, the City of Brandon Defendants, and
Deputy Sheriff Frazier in the present case. For the first time on appeal, Busick
argues that the Madison County Defendants denied him access to the courts by
denying him proper medication, which prejudiced his self-representation at his
criminal burglary trial. He contends that the actions of the Madison County
Defendants violated both the federal and state constitutions.
Busick alleged that he was incarcerated in the Madison County Detention
Center from January 18, 2002, until October 2 as a pretrial detainee and
remained at the Madison County Detention Center after his conviction until
December 15, 2002. Busick voluntarily dismissed the City of Magee case on
April 25, 2001. While incarcerated at the Madison County Detention Center,
Busick filed a motion to vacate the order granting the voluntary dismissal. The
4
Case: 07-60375 Document: 00511122897 Page: 5 Date Filed: 05/26/2010
No. 07-60375
district court granted the motion, but it involuntarily dismissed Busick’s
complaint in that case on April 24, 2002. Busick states that he would have
proceeded further in that case if he had access to the law library, but he does not
explain how he would have proceeded, what claims he would have raised, or how
those claims were meritorious. As Busick has not demonstrated that he was
prevented from raising a nonfrivolous legal claim in City of Magee, he has not
shown the existence of a viable denial of access to the courts claim in conjunction
with that case. See Lewis v. Casey, 518 U.S. 343, 351 (1996).
Busick filed his complaint in the Lamar County case on April 8, 2002,
while he was incarcerated at the Madison County Detention Center. Busick
subsequently filed so many amended complaints, attachments, and motions in
that case that on August 27, 2002, the magistrate judge ordered that he not file
any further pleadings with the court until further order. That case proceeded
until it was dismissed on Busick’s oral motion on April 14, 2003, well after
Busick was no longer incarcerated at the Madison County Detention Center. As
this case was not dismissed until well after Busick was no longer incarcerated
at the Madison County Detention Center, Busick has not shown that the actions
of the Madison County Defendants prevented him from raising a nonfrivolous
claim in this case. As Busick has not demonstrated that the Madison County
Defendants’ actions prevented him from raising a nonfrivolous legal claim in
Lamar County, he has not shown the existence of a viable denial of access to the
courts claim in conjunction with that case. See Lewis, 518 U.S. at 351.
Busick’s assertion that the actions of the Madison County Defendants
prejudiced his ability to prosecute the present civil action is also without merit.
Busick’s third amended complaint, the complaint that was considered in the
district court, was filed on January 21, 2005, years after Busick left the Madison
County Detention Center. While Busick alleges that his lack of access to the law
library at the Madison County Detention Center inhibited his ability to
successfully pursue his claims against Special Agent Dufour, Special Agent
5
Case: 07-60375 Document: 00511122897 Page: 6 Date Filed: 05/26/2010
No. 07-60375
Rollins, the City of Madison Defendants, the City of Brandon Defendants, and
Deputy Sheriff Frazier, those claims were not dismissed until September 22,
2005, almost three years after Busick was last incarcerated at the Madison
County Detention Center. As Busick has not demonstrated that the Madison
County Defendants’ actions prevented him from raising a nonfrivolous legal
claim in the present case, he has not shown the existence of a viable denial of
access to the courts claim in conjunction with this case. See Lewis, 518 U.S. at
351.
While Busick argues in this court that the Madison County Defendants
denied him access to the courts by denying him his proper medication, Busick
did not raise this claim in the district court. As this claim was not raised in the
district court, it cannot be considered on appeal. See Leverette, 183 F.3d at 342.
To the extent that Busick argues that the district court erred by granting
summary judgment on his related state law claims, he has neither cited to any
state law authority nor provided any argument regarding state law. As Busick
has not sufficiently briefed his state law claims, they are deemed waived. See
Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
Busick argues that the magistrate judge erred by granting summary
judgment on his claims that the Madison County Defendants were deliberately
indifferent to a serious risk of harm to him by failing to protect him from other
inmates. Busick alleges that Lt. Perry stood outside his four-man cell while an
inmate named Van Buren made a mixture of human feces and shaving cream
and threw it on him through the closed door of his individual cell, causing acid
burns. He states that Lt. Perry did not tell Van Buren to stop and asked Van
Buren to leave the four-man cell only after the attack. Busick maintains that
these facts show that Lt. Perry was deliberately indifferent to his safety.
Busick argues that Lt. Kiner was deliberately indifferent to the risk that
inmate Paul Smith, who assaulted Busick, posed to his safety while at the
Madison County Detention Center. He states that Smith was removed from his
6
Case: 07-60375 Document: 00511122897 Page: 7 Date Filed: 05/26/2010
No. 07-60375
four-man cell, but returned to that cell prior to the assault. He maintains that
he told Lt. Kiner prior to the assault that Smith was a threat to him because he
would not tell Smith about his legal activities. Busick states that after Smith’s
assault on him, Smith was placed back in his four-man cell again, despite the
fact that the cell was a medical cell and Smith had no medical needs. He
contends that Smith was repeatedly placed in his cell to gather information
about his legal activities.
While Busick averred that Lt. Perry had notice that Van Buren had made
an unspecified verbal threat against him, he did not present any evidence that
Lt. Perry had knowledge that he faced a substantial risk of physical harm from
Van Buren. See Little v. Spears, No. 94-60828, 1995 WL 313938 at *2 (5th Cir.
May 2, 1995) (unpublished); see also 5 TH C IR. R. 47.5.3. Additionally, Busick
arguably contradicted his written averments at a hearing when he testified that
he did not have any problems with Van Buren before the assault and admitted
that the assault may have been spontaneous. While Busick argues in this court
that Lt. Perry witnessed the assault but did not intervene, he did not raise this
claim in the district court. As this claim was not raised in the district court, it
cannot be considered on appeal. See Leverette, 183 F.3d at 342. As Busick did
not present evidence showing that any of the Madison County Defendants had
knowledge of facts showing a substantial risk of serious harm to him presented
by Van Buren and made the inference that a substantial risk existed, he has not
shown that the magistrate judge erred by granting summary judgment on this
claim. See Farmer v. Brennan, 511 U.S. 825, 837 (1994).
Although Busick averred that Lt. Kiner had knowledge of a verbal
altercation between Busick and Smith the day before the assault, he did not
present any evidence that Lt. Kiner had knowledge that Smith presented a
substantial risk of physical harm to Busick before the assault. See Little, 1995
WL 313938 at *2. Busick’s averments that Smith was placed in his four-man
cell to spy on his legal activities were insufficient to defeat the motion for
7
Case: 07-60375 Document: 00511122897 Page: 8 Date Filed: 05/26/2010
No. 07-60375
summary judgment because “mere conclusory allegations are not competent
summary judgment evidence, and such allegations are insufficient . . . to defeat
a motion for summary judgment.” Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir.
1996). While the evidence arguably showed that there was a genuine issue of
fact as to whether Lt. Kiner was deliberately indifferent to a risk substantial
harm to Busick when he moved Smith back into the four-man cell after the
assault, Busick did not allege that Smith physically assaulted him again. As
Busick was not physically harmed by Smith after Smith was returned to the cell,
he cannot maintain a claim for the return of Smith to the cell. See 42 U.S.C.
§ 1997e(e). As Busick did not present evidence showing that any of the Madison
County Defendants had knowledge of facts showing a substantial risk of serious
harm to him presented by Smith and made the inference that a substantial risk
existed, he has not shown that the magistrate judge erred by granting summary
judgment on this claim. See Farmer, 511 U.S. at 837.
To the extent that Busick argues that the district court erred by granting
summary judgment on his related state law claims, he has neither cited to any
state law authority nor provided any argument regarding state law. As Busick
has not sufficiently briefed his state law claims, they are deemed waived. See
Yohey, 985 F.2d at 224-25.
Busick argues that the district court erred by granting summary judgment
on his claims that the Madison County Defendants interfered with his legal
mail. He maintains that the Madison County Defendants interfered with his
legal mail by refusing to provide postage for all of the legal mail that he wished
to send and by reading legal mail sent by, and addressed to, him. He contends
that he was prejudiced when the Madison County Defendants read the
complaint he filed in the Lamar County case because they told the defendants
in the Lamar County case about the complaint. He asserts that he was
prejudiced when the Madison County Defendants opened and read the notice
from the prosecutor that he was being charged as a habitual offender in his
8
Case: 07-60375 Document: 00511122897 Page: 9 Date Filed: 05/26/2010
No. 07-60375
criminal cases because the Madison County Defendants were checking to see if
they had succeeded in getting him charged as a habitual offender in retaliation
for his filing civil litigation. In addition to his allegations of prejudice, Busick
argues that he should not have been required to show prejudice because he was
completely deprived of all access to legal materials.
Contrary to his assertions, Busick has not presented evidence showing
that he was prejudiced by the Madison County Defendants’ alleged interference
with his legal mail. As Busick has not made any showing that he was prevented
from raising any nonfrivolous legal argument due to interference with his legal
mail, Busick cannot show that the Madison County Defendants denied him
access to the courts by interfering with his legal mail. Ruiz v. United States, 160
F.3d 273, 275 (5th Cir. 1998). Busick’s argument that his claim is sufficient
without a showing of actual injury is without merit. See id.
To the extent that Busick is raising his interference with legal mail claim
as a freedom of speech claim, he cannot prevail as he has not alleged that any
of his incoming or outgoing mail was censored. See Brewer v. Wilkinson, No. 94-
10380, 1995 WL 581939 at *2 (5th Cir. Sept. 13, 1995) (unpublished). To the
extent that Busick argues that the district court erred by granting summary
judgment on his related state law claims, he has neither cited to any state law
authority nor provided any argument regarding state law. As Busick has not
sufficiently briefed his state law claims, they are deemed waived. See Yohey, 985
F.2d at 224-25.
Busick argues that the magistrate judge erred by granting summary
judgment on his freedom of religion claims under the First Amendment, the
Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C.
§ 2000cc-1(a), and the Mississippi Constitution. Busick asserts that the affidavit
of McNeal that was submitted in support of the motion for summary judgment
was false and contradicted by the affidavit he submitted in response to the
motion for summary judgment, creating a genuine issue of material fact for trial.
9
Case: 07-60375 Document: 00511122897 Page: 10 Date Filed: 05/26/2010
No. 07-60375
Busick contends that the policy instituted by the Madison County Defendants
requiring all magazines and books sent to inmates to be from Tyndale
Publishing Company violated his rights to religious freedom because Tyndale did
not offer free bibles to inmates while respected religious organizations contacted
by Busick did offer free bibles. He maintains that this policy prevented him from
practicing his religion because he was indigent and could not afford to order a
bible from Tyndale.
Busick sought compensatory and punitive damages, as well as declaratory
and injunctive relief. To the extent that Busick sought compensatory damages
on his freedom of religion claims, his claims were barred by § 1997e(e) because
he did not allege that he suffered a physical injury. See Mayfield v. Tex. Dep’t
of Criminal Justice, 529 F.3d 599, 605-06 (5th Cir. 2008). As Busick has long
since been transferred away from the Madison County Detention Center and
there is no indication that he will return to that facility, his claims for
declaratory and injunctive relief are moot. See Herman v. Holiday, 238 F.3d 660,
665 (5th Cir. 2001). Because Busick did not request nominal damages, his
freedom of religion claims could not survive summary judgment on that basis.
See Mayfield, 529 F.3d at 606. As Busick did not present any evidence that the
actions of the Madison County Defendants regarding his freedom of religion
claims were callous or motivated by evil intent, he could not recover punitive
damages on these claims. See Sockwell v. Phelps, 20 F.3d 187, 192 (5th Cir.
1994). Accordingly, we affirm the magistrate judge’s grant of summary
judgment on Busick’s federal law freedom of religion claims on the alternative
basis that Busick could not receive any form of requested relief on those claims.
See Mayfield, 529 F.3d at 605-06.
To the extent that Busick argues that the district court erred by granting
summary judgment on his related state law claims, he has neither cited to any
state law authority nor provided any argument regarding state law. As Busick
10
Case: 07-60375 Document: 00511122897 Page: 11 Date Filed: 05/26/2010
No. 07-60375
has not sufficiently briefed his state law claims, they are deemed waived. See
Yohey, 985 F.2d at 224-25.
Arguing that the district court erred by dismissing his claims against the
Madison City Defendants, Special Agent Dufour, Special Agent Rollins, the
Brandon Defendants, and Deputy Sheriff Frazier, Busick maintains that the
district court should have dismissed the claims it found to be barred by Heck
without prejudice instead of with prejudice. He asserts that his claims against
the Madison City Defendants did not challenge the validity of his conviction and
were not barred by Heck because he initially filed this action before he was
convicted and that his claims against the Brandon Defendants were not barred
by Heck because they concerned the conversion of his personal property, not the
validity of his conviction. Similarly, he argues that his claims against Special
Agent Dufour for shooting at him and his claims against the Madison City
Defendants for refusing to criminally prosecute Special Agent Dufour were not
barred by Heck because they would not undermine his conviction. Finally, he
asserts that the knee injury he suffered running from Special Agent Dufour
constituted a physical injury that he sustained from the defendants and that his
claims against Deputy Sheriff Frazier should not have been dismissed.
Busick’s claims against the Madison City Defendants, Special Agent
Dufour, and Special Agent Rollins for bringing false charges against him, for
making false statements concerning the charges, for conspiring to conceal facts
concerning Special Agent Dufour’s allegedly shooting at Busick, and for Special
Agent Rollins serving as the temporary foreman of the grand jury were related
to the investigation and prosecution of the burglary charge for which Busick was
convicted. As the alleged unlawfulness of the defendants’ actions would call the
conviction into question and the conviction has not been overturned or otherwise
invalidated, the district court correctly concluded that the claims were barred.
See Heck, 512 U.S. at 486-87. The district court correctly dismissed those claims
with prejudice. See Boyd v. Biggers, 31 F.3d 279, 283-84 (5th Cir. 1994).
11
Case: 07-60375 Document: 00511122897 Page: 12 Date Filed: 05/26/2010
No. 07-60375
The district court dismissed Busick’s claims against the Brandon
Defendants for conversion of his personal property on the ground that these
claims were state law conversion claims, not constitutional claims. It dismissed
Busick’s claims against Special Agent Dufour for shooting at him and injuring
his knee on the ground that Special Agent Dufour was not acting as a federal
employee or a state actor at the time of those actions. As Busick has not
addressed the reasoning supporting the district court’s dismissal of these claims,
he has waived any challenge he could have brought to their dismissal. See
Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir.
1987).
Busick’s claims that the Madison County Defendants refused to criminally
prosecute Special Agent Dufour were frivolous as Busick “does not have a
constitutional right to have someone criminally prosecuted.” Oliver v. Collins,
914 F.2d 56, 60 (5th Cir. 1990). Busick’s claims against Deputy Sheriff Frazier
did not set forth facts showing a constitutional violation, and the district court
did not err by dismissing them. See Levitt v. Univ. of Texas at El Paso, 847 F.2d
221, 224 (5th Cir. 1988).
AFFIRMED.
12