Case: 10-20842 Document: 00511600400 Page: 1 Date Filed: 09/13/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 13, 2011
No. 10-20842
Summary Calendar Lyle W. Cayce
Clerk
DALE ALLEN HAMER,
Plaintiff - Appellant
v.
WARDEN JAMES JONES; ROBERT TREON, Director; DOOS WALDRON,
Assistant Director; DEBORAH HARDMAN, Segregation Officer; FERNATER
SMITH, Property Officer; SUSAN RIVAS, Grievance Officer; OFFICER COOK;
SECOND OFFICER, Name Unknown,
Defendants - Appellees
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:08-CV-2417
Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
Dale Allen Hamer, Texas prisoner # 757273, appeals the district court’s
dismissal of his 42 U.S.C. § 1983 complaint against Warden James Jones and
Director Robert Treon. In a prior appeal, we affirmed the district court’s
dismissal of Hamer’s complaint with regard to all claims and defendants except
his Fourth Amendment right to bodily privacy claim against Director Treon.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 10-20842
Hamer v. Jones, 364 F. App’x 119, 122-25 (5th Cir. 2010). On remand, the
district court granted Warden Jones’s motion to dismiss, concluding that
Hamer’s claims against him had been dismissed by the district court and that
the dismissal had been affirmed on appeal. The district court also granted
Director Treon’s motion for summary judgment, concluding that Hamer failed
to properly exhaust his administrative remedies.
Hamer contends that the district court erred when it granted Director
Treon’s motion for summary judgment because he gave prison officials a full and
fair opportunity to adjudicate his claim that he was subjected to an improper
cross-sex strip search. He also notes that the district court did not address the
exhaustion issue in its initial sua sponte dismissal of his complaint. We review
a grant of summary judgment de novo. Dillon v. Rogers, 596 F.3d 260, 266 (5th
Cir. 2010). Similarly, the district court’s application of the remand order,
including whether the law of the case doctrine or mandate rule forecloses any of
the court’s actions on remand, is a question of law which we review de novo.
United States v. Pineiro, 470 F.3d 200, 204 (5th Cir. 2006).
Our prior opinion did not consider, either explicitly or implicitly, whether
Hamer had exhausted his administrative remedies. See Hamer, 364 F. App’x at
121-25. Therefore, neither the law-of-the-case doctrine nor the mandate rule
precluded the district court from considering Director Treon’s assertion that
Hamer failed to exhaust his administrative remedies on his right to bodily
privacy claim. See United States v. Lee, 358 F.3d 315, 320-21 (5th Cir. 2004);
Clifford v. Gibbs, 298 F.3d 328, 331 (5th Cir. 2002).
Although Hamer’s Step 1 grievance mentioned that female officers were
conducting cross-sex strip searches and that he was ordered to submit to such
a search, it also mentioned that he was handcuffed and taken away when he
questioned the female officer’s right to conduct the search. The remainder of
Hamer’s grievance addressed his allegations that prison officials used excessive
force, failed to protect him, denied him access to the courts, and lost or destroyed
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No. 10-20842
his personal property. Hamer’s isolated reference to the cross-sex strip search
did not reasonably indicate that he was complaining of being subjected to such
a search.
Moreover, Hamer’s Step 2 grievance did not advise prison officials that, in
addition to his use of force claim, he was complaining of being subjected to a
cross-sex strip search, being denied access to the courts, and having his personal
property lost or destroyed. The Step 2 grievance merely stated that he wanted
to exhaust his administrative remedies. Because Hamer failed to afford prison
officials notice and a fair opportunity to address whether he was subjected to a
cross-sex strip search, the district court did not err when it granted Director
Treon’s motion for summary judgment and dismissed Hamer’s right to bodily
privacy claim for failure to exhaust administrative remedies. See Johnson v.
Johnson, 385 F.3d 503, 517 (5th Cir. 2004).
Hamer raises a number of arguments related to the merits of his right to
bodily privacy claim, as well as his claims that various prison officials violated
his constitutional rights when they used excessive force against him, placed him
in segregated confinement without due process of law, subjected him to
inhumane prison conditions, and lost or destroyed his personal property.
Pursuant to the law-of-the-case doctrine and mandate rule, we do not consider
arguments related to any defendant or claim other than Hamer’s right to bodily
privacy claim against Director Treon. See Lee, 358 F.3d at 320-21. Further,
because the district court did not err in dismissing Hamer’s right to bodily
privacy claim against Director Treon, we need not address arguments related to
the merits of this claim. See 42 U.S.C. § 1997e(a).
Hamer also contends that the district court erred when it denied his
motion for a preliminary injunction and failed to rule on his motions for objection
and for leave to respond to the defendants’ motion for summary judgment. He
has abandoned these issues by failing to address the district court’s analysis.
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No. 10-20842
See Brinkmann v. Dall. Cnty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir.
1987).
Finally, Hamer contends that the district court erred when it denied his
motions for the appointment of counsel. He failed to demonstrate the
extraordinary circumstances necessary to justify the appointment of counsel.
Therefore, the district court’s denial of these motions was not an abuse of
discretion. See Cupit v. Jones, 835 F.2d 82, 86 (5th Cir. 1987).
Accordingly, the district court’s judgment is AFFIRMED, and Hamer’s
motion for the appointment of appellate counsel is DENIED.
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