Lair v. Purdy

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 6, 2006

Charles R. Fulbruge III
No. 04-41466 Clerk
Summary Calendar

SCOTT MARK LAIR, ET AL.,

Plaintiffs,

SCOTT MARK LAIR,

Plaintiff-Appellant,

versus

MIKE PURDY, etc., ET AL.,

Defendants,

MIKE PURDY, individually and as Warden of FCI-TRV; LARRY SANDSON;
LIEUTENANT ROBERT SWAIN, individually and as Lieutenant FCI-TRV;
MIKE CARVAJAL, individually and as Lieutenant FCI-TRV; BERNIE
AYALA, individually and as Correction Officer FCI-TRV; MIKE RUIZ,
individually and as Deputy Sheriff Live Oak County; John Doe #1;
John Doe #2; John Doe #3; John Doe #4; John Doe #5; UNITED STATES
OF AMERICA,

Defendants-Appellees.

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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:01-CV-381
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Before JONES, Chief Judge, and BARKSDALE and BENAVIDES, Circuit
Judges.

PER CURIAM:*

Scott Mark Lair, federal prisoner # 76589-079, appeals the

dismissal, on remand, of the following claims: (1) He was

*
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opinion should not be published and is not precedent except under the limited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.
subjected to harsher visitation restrictions than other inmates, in

violation of his rights under the First Amendment; (2) his

placement in the Special Housing Unit (SHU) violated his due

process rights; and, (3) Lt. Swain and Officer Ayala retaliated

against him for filing grievances and for writing letters regarding

his treatment in prison.

Lair argues that his claim based on visitation restrictions is

not frivolous because prison officials used the visitation process

as a “bargaining chip” to force him to submit to their authority.

The district court did not err in dismissing this claim as

frivolous and for failure to state a claim on which relief can be

granted. See Berry v. Brady, 192 F.3d 504, 508 (5th Cir. 1999);

Thorne v. Jones, 765 F.2d 1270, 1274 (5th Cir. 1985). Because we

affirm the dismissal of the claim based on visitation restrictions

on the above grounds, we do not reach Lair’s argument that the

district court erred in dismissing the claim as time barred. See

Sojourner T v. Edwards, 974 F.2d 27, 30 (5th Cir. 1992).

Lair contends that his 420-day confinement in the SHU was

unconstitutional and that the reasons given for his placement in

the SHU were “false.” He maintains that the defendants violated

regulations governing the Bureau of Prisons in confining him to the

SHU. Lair has not shown that the district court erred in

dismissing his due process claim regarding his placement in the SHU

for failure to state a claim. See Pichardo v. Kinker, 73 F.3d 612,

612 (5th Cir. 1996); Luken v. Scott, 71 F.3d 192, 193 (5th Cir.

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1995).

Lair contends that the district court erred in dismissing his

retaliation claim against Lt. Swain and Officer Ayala. He contends

that the grievances he filed on other matters were sufficient under

the circumstances to provide notice of his claims and to

substantially comply with the exhaustion requirement. Lair has not

shown that the district court erred in dismissing his retaliation

claims against Lt. Swain and Officer Ayala for failure to exhaust

administrative remedies. See Days v. Johnson, 322 F.3d 863, 866-68

(5th Cir. 2003).

It is unclear whether the district court’s dismissal of the

retaliation claims was with prejudice with respect to the

exhaustion requirement. The judgment of the district court will be

affirmed as modified to reflect that the dismissal of the

retaliation claims against Lt. Swain and Officer Ayala is without

prejudice. See Wright v. Hollingsworth, 260 F.3d 357, 359 (5th

Cir. 2001). Because we affirm the dismissal of the retaliation

claims for failure to exhaust administrative remedies, we do not

reach Lair’s argument that the district court erred in dismissing

the retaliation claims for failure to state a claim on which relief

can be granted. See Sojourner T, 974 F.2d at 30.

AFFIRMED AS MODIFIED.

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