IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 14, 2008
No. 05-11203 Charles R. Fulbruge III
Summary Calendar Clerk
JEROMY D BRAY
Plaintiff-Appellant
v.
NFN YOUNG, Warden; SARGEANT NFN MOORE, Major;
VARIOUS MEMBERS OF CLASSIFICATION, Staff and Ranking Officers;
NFN WHEELER, Warden; NFN OWENS; NFN EDWARDS; NFN HUBBARD;
FNU ESPINOZA, Classification Chief; TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, INSTITUTIONAL DIVISION
Defendants-Appellees
--------------------------
consolidated w/
No. 06-10935
Summary Calendar
JEROMY D BRAY
Plaintiff-Appellant
v.
NFN HUBBARD; FNU ESPINOZA, Classification Chief
Defendants-Appellees
No. 05-11203
c/w No. 06-10935
Appeals from the United States District Court
for the Northern District of Texas
USDC No. 1:04-CV-39
Before REAVLEY, JOLLY, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Jeromy D. Bray, Texas prisoner # 919964 filed a complaint under 42
U.S.C. § 1983 against Warden Young, Warden Wheeler, Major Moore, Captain
Owens, Captain Edwards, Captain Hubbard, and Classification Chief Espinoza.
Bray’s complaint centered on the allegation that he was being forced to work at
a prison job that violated his medical restrictions. When Bray refused to work,
he received disciplinary convictions and was sanctioned with commissary
restrictions, property restrictions, cell restrictions, contact visitation restrictions,
and a change in his security classification.
The magistrate judge dismissed Bray’s claims against Warden Young,
Warden Wheeler, Major Moore, Captain Owens, and Captain Edwards for
failure to state a claim and entered a final judgment. The magistrate judge
subsequently granted summary judgment in favor of Captain Hubbard and
Classification Chief Espinoza. We have consolidated Bray’s appeals in these
matters. See FED. R. APP. P. 3(b)(2).
Bray argues that the magistrate judge erred in dismissing his claims
against the defendants in their official capacities. He contends that he should
be allowed to maintain suit to force the defendants to comply with federal law
in the future. He also argues that the district court erred in denying his request
*
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should not be published and is not precedent except under the limited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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No. 05-11203
c/w No. 06-10935
for a temporary restraining order. Because Bray has been transferred to
another correctional institution, his claims for injunctive relief are moot. See
Herman v. Holiday, 238 F.3d 660, 665 (5th Cir. 2001); Cooper v. Sheriff, Lubbock
County, 929 F.2d 1078, 1084 (5th Cir. 1991).
Bray argues that the magistrate judge erred in dismissing his claims
against Warden Young, Major Moore, and Captain Edwards for failure to state
a claim upon which relief may be granted. He contends that these defendants
were personally involved in making decisions regarding his job assignments.
A dismissal under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim
is reviewed under the same de novo standard as a dismissal under Federal Rule
of Civil Procedure 12(b)(6). Black v. Warren, 134 F.3d 732, 733-34 (5th Cir.
1998). To state a claim, a plaintiff is required to make sufficient factual
allegations “to raise a right to relief above the speculative level, on the
assumption that all the allegations in the complaint are true (even if doubtful
in fact).” Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1965 (2007) (citations
omitted).
Bray attempts to show error in the magistrate judge’s dismissal of his
claims against Warden Young, Major Moore, and Captain Edwards by pointing
to summary judgment evidence concerning Captain Hubbard and Classification
Chief Espinoza. Bray’s reliance on the summary judgment record is misplaced.
“While it is . . . appropriate to look beyond the pleadings to decide whether
summary judgment should be granted, the converse is true when the question
is whether the pleadings state a claim.” Jackson v. City of Beaumont Police
Dept., 958 F.2d 616, 618 (5th Cir. 1992). A motion pursuant to Rule 12(b)(6) “is
to be evaluated only on the pleadings.” Id. (quotation marks and citation
omitted). As to this issue, Bray’s brief contains only unsupported, conclusional
assertions, which are insufficient to establish the denial of a constitutional right.
See Koch v. Puckett, 907 F.2d 524, 530 (5th Cir. 1990).
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Bray contends that the magistrate judge erred in dismissing his claim
against Warden Wheeler. He argues that Warden Wheeler assigned him to the
community work squad, where he was forced to perform labor that violated his
medical restrictions. Bray also contends that Warden Wheeler was aware of the
difficulties he was having with his work assignments because Bray filed a
grievance about the matter. Because Bray’s allegations, which are accepted as
true, fail to show that Warden Wheeler was personally involved in the alleged
constitutional violation, we conclude that the magistrate judge did not err in
dismissing Bray’s claim. See Twombly, 127 S. Ct. at 1965; Thompson v. Steele,
709 F.2d 381, 382 (5th Cir. 1983).
Bray also challenges the district court’s dismissal of his claim against
Captain Owens, which are related to Captain Owen’s role as the adjudicator at
Bray’s disciplinary hearings. Bray argues that his due process rights were
violated when Captain Owens refused to allow him to call a witness and when
Captain Owens punished him by reducing his security classification and his
time-earning classification. Because the punishments received by Bray do not
implicate a constitutionally protected interest, the magistrate judge did not err
in dismissing Bray’s claim against Captain Owens. See Whitley v. Hunt,
158 F.3d 882, 889 (5th Cir. 1998), abrogated in part on other grounds, Booth v.
Churner, 532 U.S. 731 (2001); Luken v. Scott, 71 F.3d 192, 193 (5th Cir. 1995).
Finally, Bray challenges the district court’s grant of summary judgment
in favor of Captain Hubbard and Classification Chief Espinoza. Bray’s opening
brief in the appeal of that judgment, however, is devoid of citations to the record
or to supporting authority and is entirely conclusory. Bray instead attempts to
incorporate by reference a document he filed in the district court.
Although this court applies less stringent standards to parties proceeding
pro se than to counsel-represented parties and liberally construes briefs of pro se
litigants, pro se parties must still brief the issues. Grant v. Cuellar, 59 F.3d
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523, 524 (5th Cir. 1995). The appellant’s brief must contain an argument, which
in turn must contain his “contentions and the reasons for them, with citations
to the authorities and parts of the record on which the appellant relies.” FED. R.
APP. P. 28(a)(9); see Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993). The
appellant must raise his arguments in the body of his brief and may not
incorporate by reference his prior pleadings. See Perillo v. Johnson, 79 F.3d 441,
443 n.1 (5th Cir. 1996).
Because Bray has not briefed the summary judgment dismissal of his
claims against Hubbard and Espinoza, he is deemed to have abandoned the
issue. See Geiger v. Jowers, 404 F.3d 371, 373 n.6 (5th Cir. 2005). To the extent
that Bray has argued the issue of the grant of summary judgment in his reply
brief this effort is unavailing. “An appellant abandons all issues not raised and
argued in its initial brief on appeal.” Cinel v. Connick, 15 F.3d 1338, 1345 (5th
Cir. 1994) (emphasis in original).
The judgment of the district court is, in all respects, AFFIRMED.
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