Mahmoud v. Bowie

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 99-31255
Summary Calendar

MOHD RIBHE MAHMOUD

Plaintiff - Appellant

v.

GEORGE BOWIE, Etc; ET AL

Defendants

GEORGE BOWIE, Individually and in his official capacity;
MARY HILL, Individually and in her official capacity;
SID HEBERT, Individually and in his official capacity;
AGATHA BOUTTEE; LOUIS DORSEY; JERRY DORBY; JOSE, Lieutenant;
HOLMES, Sergeant; JUDY CUFFEE; JOE FINK; RON NICHOLAS;
LYNN UNDERDOWNE; RAYMOND MURREY; MICHEAL KELLY; MIKE ROMERO;
WILLIAM FLORES; DEBBY MITCHELLE

Defendants - Appellees

--------------------
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 99-CV-275
--------------------
September 14, 2000

Before KING, Chief Judge, and JONES and STEWART, Circuit Judges.

PER CURIAM:*

Mohd Ribhe Mahmoud, a detainee of the Immigration and

Naturalization Service (INS) # A22539-198, filed a civil rights

action under 42 U.S.C. § 1983 and Bivens v. Six Unknown Named

Agents, 403 U.S. 388, 389 (1971) against various INS officials

*
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that this opinion should not be published and is not precedent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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and officials of the Iberia Parish Jail. Contrary to the finding

of the district court, Mahmoud is not subject to the Prisoner

Litigation Reform Act (PLRA) because the PLRA does not apply to

INS detainees. See Ojo v. INS, 106 F.3d 680, 682 (5th Cir.

1997); Edwards v. Johnson, 209 F.3d 772, 776 (5th Cir. 2000).

Mahmoud may proceed in forma pauperis (IFP) on appeal in

accordance with Fed. R. App. P. 24(a)(3). Accordingly, the

district court’s order of December 27, 1999, imposing a filing

fee under the PLRA is VACATED and any money paid in conformance

to that order shall be returned to Mahmoud.

With respect to the merits of Mahmoud’s appeal we review a

dismissal for failure to state a claim pursuant to Fed. R. Civ.

P. 12(b)(6) de novo. Black v. Warren, 134 F.3d 732, 734 (5th

Cir. 1998). We will assume the truth of Mahmoud’s factual

allegations, and will uphold the lower court “only if it appears

that no relief could be granted under any set of facts that could

be proven consistent with the allegations.” Moore v. Carwell,

168 F.3d 234, 236 (5th Cir. 1999) (citation omitted).

Mahmoud asserts that he was deprived of his property without

due process of law. "Under the Parratt/Hudson doctrine, a state

actor's random and unauthorized deprivation of a plaintiff's

property does not result in a violation of procedural due process

rights if the state provides an adequate postdeprivation remedy."

Alexander v. Ieyoub, 62 F.3d 709, 712 ( 5th Cir. 1995) (footnote

omitted); Parratt v. Taylor, 451 U.S. 527, 541-44 ( 1981)

(overruled in part not relevant here, Daniels v. Williams, 474

U.S. 327 (1986)); Hudson v. Palmer, 468 U.S. 517, 533 (1984).
 No. 99-31255
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Mahmoud’s allegation that prison officials stole his property

following cell searches fits these conditions. Marshall v.

Norwood, 741 F.2d 761, 763-64 (5th Cir. 1984).

Mahmoud asserts that he was denied access to the courts.

Mahmoud asserts that he suffered prejudice because this court

refused his suggestion for a rehearing en banc and because the

Supreme Court denied certiorari in his habeas case and because he

was not able to timely apply for relief under new rules of the

International Convention Against Torture. These assertions do

not demonstrate prejudice to his case. Bounds v. Smith, 430 U.S.

817, 828 (1977). Mahmoud also alleges that he was not given

enough time in the law library to provide help to other inmates.

This claim asserts the rights of others and does not implicate

Mahmoud‘s right to prepare and transmit his own necessary legal

documents to a court. See Brewer v. Wilkinson, 3 F.3d 816, 821

(5th Cir. 1993).

Mahmoud asserts various unconstitutional conditions of

confinement. The due process clause of the Fourteenth Amendment

protects detainees from being subjected to conditions of

confinement that constitute punishment. Hamilton v. Lyons, 74

F.3d 99, 103 (5th Cir. 1996)(citing Bell v. Wolfish, 441 U.S.

520, 535 (1979). The Bell test applies "when a pretrial detainee

attacks general conditions, practices, rules, or restrictions of

pretrial confinement." Hare v. City of Corinth, 74 F.3d 633, 643

(5th Cir. 1996) (en banc). If a pretrial detainee bases his

claim upon a jail official's "episodic acts or omissions," the

standard of subjective deliberate indifference enunciated in
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Farmer v. Brennan, 511 U.S. 825 (1994), is the measure of

culpability. Hare, 74 F.3d at 643.

With respect to his claims of denial of medical care,

Mahmoud is raising a claim of an episodic denial of medical care

and he has not demonstrated deliberate indifference to his

serious medical needs. Mendoza v. Lynaugh, 989 F.2d 191, 195

(5th Cir. 1993).

Mahmoud asserts that the jail does not have adequate fire

protection; that the shower and toilet area were unsanitary; that

the jail does not provide for adequate physical exercise or

mental stimulation; that he was not clothed properly; that he was

not issued nail clippers and Q-tips; and that the food was

unappetizing. All of these claims are either conclusional or de

minimis and do not rise to the level of constitutional

violations. The judgment of the district court is AFFIRMED.

AFFIRMED; IFP ORDER VACATED.