Farr v. Rodriguez

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

FILED
December 5, 2007

No. 05-41395 Charles R. Fulbruge III
Clerk

LARRY SHANE FARR, All other similarly situated persons, who have been
currently are, and/or will be, suspected and/or confirmed as to gang
memberships, associations, and/or affiliations, by the Texas Department of
Criminal Justice while within its custody,

Plaintiff-Appellant
v.

ADAN E RODRIGUEZ; STAFFORD O HALL; DOUGLAS W SATTERFIELD;
JASON T HEATON; STUART N CALHOUN; ET AL

Defendants-Appellees

Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:04-CV-516

Before REAVLEY, STEWART, and OWEN, Circuit Judges.
PER CURIAM:*
Larry Shane Farr, formerly Texas prisoner # 665164, filed a pro se 42
U.S.C. § 1983 complaint against 50 prison officials arising out of his
classification as a gang member and placement in administrative segregation.
After conducting a hearing pursuant to Spears v. McCotter, 766 F.2d 179 (5th

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
 No. 05-41395

Cir. 1985), the district court dismissed the complaint as frivolous. Because we
conclude that many of Farr’s claims are now moot due to his release from prison
and that the remaining claims are without merit, we affirm.
Farr alleged that in July 2003 prison officials erroneously classified him
as a member of a gang known as the “Aryan Circle” and placed him in
administrative segregation. He claimed that his due process rights were
violated and that he was not permitted to contest the gang-membership
determination before the State Classification Committee until more than one
year later, whereupon he was not permitted to rebut the evidence against him.
Farr’s voluminous complaint raises a panoply of legal theories, including due
process, equal protection, self-incrimination, right to counsel, retaliation,
conspiracy, and numerous alleged procedural errors. Farr sought both
injunctive and monetary relief.
The district court dismissed the complaint as frivolous pursuant to 28
U.S.C. § 1915A. We review such dismissals de novo. Ruiz v. United States, 160
F.3d 273, 275 (5th Cir. 1998).
We note first that during the pendency of this appeal Farr was released
from prison and is no longer in custody. To the extent that Farr sought
injunctive relief due to the conditions of his confinement, his claims are now
moot. See Oliver v. Scott, 276 F.3d 736, 741 (5th Cir. 2002). Farr also sought
money damages and claimed there were collateral consequences to his gang
classification, but his claims are unavailing.
Farr argues that the district court erred in dismissing his claim that the
gang-membership determination and subsequent placement in administrative
segregation violated his right to due process. In order to state a viable § 1983
claim, Farr must show that he has been deprived of a liberty interest protected
by the Fourteenth Amendment. Wilkinson v. Austin, 545 U.S. 209, 221, 125
S. Ct. 2384, 2393 (2005); Coleman v. Dretke, 395 F.3d 216, 221 (5th Cir. 2004).

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Farr’s confinement in administrative segregation because of his classification as
a gang member does not trigger due process concerns. See Pichardo v. Kinker,
73 F.3d 612, 613 (5th Cir. 1996); Luken v. Scott, 71 F.3d 192, 193 (5th Cir. 1995).
The Supreme Court has recognized that the extreme conditions of the Ohio
“Supermax” prison involved such atypical and extraordinary circumstances that
placement there implicated a liberty interest. Wilkinson, 545 U.S. at 223–24,
125 S. Ct. at 2394–95. The conditions about which Farr complains—ranging
from the lack of access to work and education programs to the deprivation of salt
and pepper, television, and games—do not rise to the level recognized in
Wilkinson as sufficient to implicate a liberty interest. Although Farr also
alleged that he was denied parole eligibility because of his classification and that
his term in administrative segregation was potentially indefinite—two
conditions present in Wilkinson—Farr’s case is distinguishable. Farr was not
automatically ineligible for parole, which is determined under state law by the
offense of conviction and the discretion of the parole panel. TEX. GOV’T CODE
§§ 508.141(a)(3), (d)–(e). Further, the indefinite nature of placement in
administrative segregation was not alone decisive in Wilkinson, where there
were also severe limitations on human contact and other extraordinary
conditions not found here. See Wilkinson, 545 U.S. at 223–24, 125 S. Ct. at
2394–95.
Farr also asserts a liberty interest in the consequences of the gang-
membership determination following his release and in the “stigmatizing” effect
of being labeled a gang member. He asserts that his gang classification is
shared with law enforcement agencies and also could be used against him in
future criminal prosecutions. However, “speculative, collateral consequences of
prison administrative decisions do not create constitutionally protected liberty
interests.” Luken, 71 F.3d at 193 (finding no liberty interest in opportunity to
earn good time credits). Farr’s claims of potential future injury remain too

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speculative to establish a cognizable liberty interest. To the extent Farr alleges
a stigma from being classified as a gang member, the classification, without
more, is insufficient to raise a constitutional claim. See, e.g., Vitek v. Jones, 445
U.S. 480, 493–94, 100 S. Ct. 1254, 1264 (1980) (finding a liberty interest in the
stigmatizing effect of being labeled mentally ill together with mandatory
behavior modification treatment) and Coleman, 395 F.3d at 223 (holding that
labeling an inmate as a sex offender and requiring intrusive and
behavior-modifying therapy as a condition of parole implicated a liberty
interest). Because Farr fails to allege a protected liberty interest, we do not
address whether the process for determining his classification was adequate.1
Farr also argues that the district court erroneously dismissed his equal
protection claim. He argues that only members of certain gangs are forced into
administrative segregation and that inmates so confined are treated differently.
Because Farr is no longer in custody, he lacks a personal interest in the prison’s
assignment of gang members to administrative segregation, and his claim is
moot. To the extent Farr’s pleadings may be liberally construed to claim that he
was treated differently because he was placed into “rotation cells” without a
specific security designation, Farr fails to show that he suffered disparate
treatment compared with similarly situated prisoners as a result of the prison’s
security-related decisions. See Martin v. Scott, 156 F.3d 578, 580 (5th Cir. 1998).
Farr argues that his Fifth Amendment right against self-incrimination
was also implicated because in order to avoid segregation he would have had to
enter a gang-renunciation process, which involves signing an admission of gang
membership. Farr’s release from custody obviates any need for Farr to
participate in such a process, and the claim is moot.

1
In the absence of a claim establishing a due process violation, the district court
correctly dismissed Farr’s claim that prison officials conspired to violate his rights. See
Villanueva v. McInnis, 723 F.2d 414, 418 (5th Cir. 1984) (requiring actual deprivation of
constitutional right for conspiracy claim under § 1983).

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Farr’s contention that his gang classification caused him to lose good time
credits in violation of the Ex Post Facto Clause is also moot due to his release
from prison because under Texas law good time would not carry over to any
subsequent incarceration. See Adair v. Dretke, 150 F. App’x 329, 332 (5th Cir.
2005); TEX. GOV’T CODE § 498.004(b). Furthermore, there was no ex post facto
violation because good time credits affect only parole eligibility and their loss
does not increase the sentence. See Palmer v. Texas Bd. of Paroles, 89 F. App’x
857, 858 (5th Cir. 2003).
Farr next asserts various claims related to his conditions of confinement.
He claims prison officials violated the Eighth Amendment and subjected him to
cruel and unusual punishment because guards used handcuffs on him that were
not sanitized after being worn by other inmates; officials placed “security cards”
with the inmates’ identifying information outside each cell; inmates were rotated
among cells; and an inadequate ventilation system caused a “foul odor.” Farr’s
claims fail because these inconveniences of prison life neither amount to “the
denial of the minimal civilized measure of life’s necessities” nor support an
inference of deliberate indifference. Farmer v. Brennan, 511 U.S. 825, 834, 114
S. Ct. 1970, 1977 (1994) (internal quotation marks omitted). Farr also asserts
a claim for a “state-created danger” on similar grounds, but we have refused to
recognize that theory. See, e.g., Longoria v. Texas, 473 F.3d 586, 593 n.8 (5th
Cir. 2006).
Farr contends that prison officials denied him access to the courts because
they prevented him from accessing his legal materials and seeking assistance
from other inmates, provided him with legal research only three days per week,
provided individual cases requested rather than the entire reporter volumes, and
sometimes provided erroneous or incomplete items. The right to access the
courts guarantees “only that [inmates] be able to present their grievances to the
courts.” Lewis v. Casey, 518 U.S. 343, 360, 116 S. Ct. 2174, 2184 (1996). It does

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not guarantee unlimited access to generalized legal research. See id.; Jones v.
Greninger, 188 F.3d 322, 325 (5th Cir. 1999). The limitations on Farr’s research
did not amount to a constitutional violation. Moreover, Farr fails to show an
actual injury, and his argument is belied by his voluminous pleadings, numerous
motions and exhibits, and frequent citations to caselaw. See Chriceol v. Phillips,
169 F.3d 313, 317 (5th Cir. 1999) (noting that “an inmate alleging denial of
access to the courts must demonstrate an actual injury stemming from the
defendants’ unconstitutional conduct”).
Farr also asserts that prison officials interfered with his right to file
administrative grievances necessary to exhaust his claims. He fails to assert
any actual injury, however, because prison officials stipulated at the Spears
hearing that all of his claims were exhausted.
Farr argues that prison officials retaliated against him for conducting legal
research and filing administrative grievances by placing him in rotation cells,
requiring him to file numerous grievances to exhaust his administrative
remedies, constraining his access to legal materials, and tampering with his
mail. An inmate cannot make a claim for retaliation unless the retaliation
involves the violation of “a specific constitutional right.” Jones, 188 F.3d at 325.
The alleged actions did not deprive Farr of a specific constitutional right, and the
district court correctly dismissed the retaliation claim. See id.
Farr further objects to the district court’s denial of his motion for the
appointment of counsel. Farr fails to demonstrate the “exceptional
circumstances” necessary for the appointment of counsel, and the district court
did not err. See Ulmer v. Chancellor, 691 F.2d 209, 212 (5th Cir. 1982).
Finally, Farr objects to a multitude of alleged procedural errors in the
district court proceedings generally and in the Spears hearing specifically. We
conclude that the claims are without merit.
AFFIRMED.

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