Case: 20-11047 Document: 00516494649 Page: 1 Date Filed: 10/04/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
October 4, 2022
No. 20-11047 Lyle W. Cayce
Clerk
Michael Joseph DeMarco, Jr.,
Plaintiff—Appellant,
versus
Jeremy J. Bynum, Officer,
Defendant—Appellee.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 7:14-CV-94
Before Clement, Duncan, and Wilson, Circuit Judges.
Per Curiam:
Michael Joseph DeMarco, Jr., Texas prisoner # 1564162, appeals the
summary judgment dismissal of his 42 U.S.C. § 1983 claim that Jeremy
Bynum, a correctional officer at the Allred Unit of the Texas Department of
Criminal Justice (TDCJ), confiscated DeMarco’s religious materials in
violation of the Free Exercise Clause of the First Amendment. We affirm.
I.
In August 2014, DeMarco filed this § 1983 action against Bynum and
other defendants. The district court dismissed the action for failure to state
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No. 20-11047
a cognizable claim. DeMarco appealed, and this court affirmed in part,
reversed in part, and remanded. DeMarco v. Davis, 914 F.3d 383, 386–90 (5th
Cir.) (affirming dismissal of all defendants and claims save the free exercise
claim against Bynum), cert. denied, 140 S. Ct. 250 (2019). Following remand,
Bynum moved for summary judgment. He contended that TDCJ
Administrative Directive (AD) 03.72 and his confiscation of DeMarco’s
religious materials pursuant to that policy were reasonably related to a
legitimate penological objective, namely, maintenance of prison security
based on Bynum’s belief that the confiscated materials could be used in the
trafficking or possession of contraband. Bynum also contended that he was
entitled to qualified immunity. The district court agreed with Bynum on both
points and granted summary judgment. DeMarco filed a timely notice of
appeal.
II.
We review a district court’s grant of summary judgment de novo,
applying “the same standard as that employed by the district court.” McFaul
v. Valenzuela, 684 F.3d 564, 571 (5th Cir. 2012). That is, we affirm “if the
movant shows that there is no genuine dispute as to any material fact and . . .
the movant is entitled to judgment as a matter of law.” Id. (quoting Fed. R.
Civ. P. 56(a)).
III.
On appeal, DeMarco attempts to raise several issues. 1 But only one
issue was remanded to the district court for consideration: whether Bynum’s
1
For example, DeMarco argues that the confiscated materials were not altered and
that TDCJ failed to follow protocols regarding storage of confiscated materials and chain
of custody, as well as procedures regarding disciplinary hearings. These arguments are
immaterial to this appeal. Whether the materials were altered is inconsequential because
2
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No. 20-11047
confiscation of DeMarco’s materials violated DeMarco’s constitutional
rights under the Free Exercise Clause, i.e., “whether the alleged confiscation
was reasonably related to a legitimate penological objective.” See DeMarco,
914 F.3d at 389–90. The district court’s ultimate ruling on this issue rested
on two key grounds that are supported by the record and the law: DeMarco’s
property was improperly stored per AD-03.72, and AD-03.72 is reasonably
related to a legitimate penological goal of prison safety. Summary judgment
was thus proper.
As stated in our prior opinion in this case, “[a]n inmate retains his
right to the free exercise of religion, subject to reasonable restrictions
stemming from legitimate penological concerns.” Id. at 388–89. When
evaluating the reasonableness of a prison’s policy, we consider (1) whether
there is a “valid, rational connection” between the regulation and the
government interest; (2) whether there are alternative means of exercising
the rights that remain open to prisoners; (3) the impact that accommodation
of the asserted constitutional rights would have on other prisoners, guards,
and prison resources; and (4) the presence or absence of ready alternatives
that fully accommodate a prisoner’s rights at de minimis cost to valid
penological interests. Turner v. Safley, 482 U.S. 78, 89–91 (1987) (citation
omitted). “[P]rison officials are entitled to ‘substantial deference’ in the
exercise of their professional judgment,” and it is an inmate’s burden to
prove “that a prison policy, as applied, is not reasonably related to legitimate
penological objectives.” DeMarco, 914 F.3d at 389.
DeMarco concedes that the materials were not properly stored. Further, the district court
previously severed DeMarco’s claim that he was denied due process at his disciplinary
hearing; that claim is thus a separate cause of action not part of this appeal. See DeMarco,
914 F.3d at 387 & n.3.
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AD-03.72 concerns the possession of inmate property. Section V
(“In-Cell Storage Requirements”) provides that when an inmate is not in his
cell, his property—with some exceptions not relevant here—must be stored
in a container with a storage capacity of 1.75–2.0 cubic feet. Section VIII
(“Confiscation of Offender Personal Property”) states that the inmate’s
“personal property may be confiscated at any time, from any location, for the
reasons indicated in [Section VIII], and any other appropriately documented
circumstances as necessary to ensure safety and security.” One such reason
is improper storage of property. The policy also defines non-dangerous
contraband as “authorized property which has been altered, damaged, . . . or
is out of place,” and states that this type of contraband “[r]epresents a threat
to the management of the unit” and “violates TDCJ rules.”
DeMarco concedes that he did not store his religious materials as
required by AD-03.72. And this court has previously indicated that TDCJ
policies regarding storage of personal property do not infringe on a prisoner’s
right to free exercise of religion. See Long v. Collins, 917 F.2d 3, 4 (5th Cir.
1990) (addressing AD-03.72 and suggesting, albeit in dicta, that prison
officials may impose reasonable restrictions on the amount and type of
personal property inmates can possess without violating prisoners’
constitutional rights); see also Carrio v. Tex. Dep’t of Crim. Just., Inst. Div.,
196 F. App’x 266, 268 (5th Cir. 2006) (stating prisoner’s “claimed denial of
his First Amendment right to free exercise of his religion when prison
officials enforced a new prison storage policy was . . . properly dismissed
because the storage policy [was] reasonably related to legitimate penological
interests” (citing Safley, 482 U.S. at 89)). We now confirm that to be the
case.
Evaluating AD-03.72 in view of the considerations outlined in Safley,
482 U.S. at 89–91, Bynum’s confiscation of DeMarco’s religious materials
was reasonably related to a legitimate penological objective. First, there is a
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“valid, rational connection” between AD-03.72 and TDCJ’s interest in
prison safety and management, insofar as the policy is aimed at reducing the
access of others to an inmate’s personal property and preventing the
trafficking of contraband. See Safley, 482 U.S. at 89 (citation omitted). There
is also an alternative way for DeMarco to exercise his First Amendment
rights, by accessing religious reading materials through the prison chaplain.
The impact of accommodating DeMarco’s constitutional rights on other
prisoners, guards, and prison resources could be great, given the
management and safety concerns underlying the policy. See id. at 90 (noting
that “[i]n the necessarily closed environment of the correctional institution,
few changes will have no ramifications on the liberty of others or on the use
of the prison’s limited resources for preserving institutional order”). Finally,
DeMarco has not “point[ed] to an alternative that fully accommodates [his]
rights at de minimis cost to valid penological interests.” Id. at 91. For these
reasons, the district court did not err by concluding that DeMarco failed to
demonstrate a violation of his First Amendment rights based on Bynum’s
confiscation of his improperly stored religious materials pursuant to AD-
03.72.
Moreover, even if Bynum had violated DeMarco’s constitutional
rights, the district court correctly found that Bynum was entitled to qualified
immunity because his actions were objectively reasonable. “The doctrine of
qualified immunity shields officials from civil liability so long as their conduct
‘does not violate clearly established statutory or constitutional rights of
which a reasonable person would have known.’” Perniciaro v. Lea, 901 F.3d
241, 255 (5th Cir. 2018) (quoting Mullenix v. Luna, 577 U.S. 7, 11 (2015)).
But “[a]n official that violates a constitutional right is still entitled to qualified
immunity if his or her actions were objectively reasonable.” Id. Bynum
contends that he seized the materials because inmates can use unsecured
items for trafficking and contraband purposes; this position is supported by
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evidence in the record as well as the law referenced above. DeMarco, who
has the burden to rebut the qualified immunity defense, Baldwin v. Dorsey,
964 F.3d 320, 325 (5th Cir. 2020), does not meaningfully do so.
AFFIRMED.
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