IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 95-10316
Summary Calendar
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DANNY RAY EASON,
Plaintiff-Appellant,
versus
WARDEN THALER, ET AL.,
Defendants-Appellees.
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Appeal from the United States District Court for the
Northern District of Texas
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January 17, 1996
Before GARWOOD, WIENER and PARKER, Circuit Judges.*
PER CURIAM:
Plaintiff-appellant Danny Ray Eason (Eason), an inmate
confined in the Texas Department of Criminal Justice-Institutional
Division (TDCJ), brought this suit against five TDCJ officials
pursuant to 42 U.S.C. Section 1983 alleging violations of his civil
rights. Eason appeals the district court’s grant of summary
judgment for the defendants-appellees.
*
Pursuant to Local Rule 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.
Facts and Procedural Background
Eason’s claims can be traced to a disturbance that occurred at
TDCJ’s Preston E. Smith Unit (Smith Unit), where Eason was
confined, on November 12, 1992. Sometime in the evening on that
date, a potentially explosive situation developed in the recreation
yard of the Smith Unit. Large groups of African-American and
Hispanic inmates became hostile towards one another, and prison
officials averted a dangerous situation by quickly segregating the
Hispanic and African-American inmates and moving all of the
prisoners, in stages, back into their cells. During this episode
in the yard, Eason——apparently an African-American——had been in the
Smith Unit’s recreation room. He and the other prisoners in the
recreation room were likewise directed to return to their
respective wings, and subsequently to their cells. Warden Richard
Thaler, who was senior warden at the Smith Unit on November 12,
1992, contacted the TDCJ regional director’s office and it was
determined that several buildings of the unit should be immediately
“locked-down” pending an investigation into this disturbance.
During the lockdown, the impacted inmates were essentially confined
to their cells. The wing of the building in which Eason was housed
remained on lockdown until December 7, 1992, for a duration of
approximately twenty-six days. Because the inmates were not
permitted to leave their cells——except for periodic showers——meals,
library books, medical assistance and all other necessities and
services had to be brought to the inmates’ cells. Eason’s claims
2
arise out of this lockdown and events which occurred during the
twenty-six day period.
Eason filed this action under 42 U.S.C. Section 1983 in the
United States District Court for the Northern District of Texas,
Lubbock Division. The district court dismissed Eason’s claims
pursuant to 28 U.S.C. Section 1915(d). In Eason v. Thaler, 14 F.3d
8 (5th Cir. 1994), this Court vacated the district court’s
judgment, finding that Eason’s section 1983 claims might not have
been frivolous if he had been given the opportunity to develop
these claims through the use of a questionnaire or a hearing
(Spears hearing) as provided for in Spears v. McCotter, 766 F.2d
179 (5th Cir. 1985). On remand, the district court required Eason
to answer a questionnaire and held a Spears hearing so that he
might develop the facts related to his claims. The parties filed
cross-motions for summary judgment, and, in accordance with the
district court’s order, they also filed post-Spears hearing
summaries of the facts and their arguments. On March 16, 1995,
United States Magistrate Judge J.Q. Warnick, Jr. entered his
findings, conclusions and recommendation (Magistrate’s findings)
based on all of the evidence. Expressly adopting the Magistrate’s
findings, the district court granted summary judgment for the
defendants and dismissed Eason’s complaint with prejudice on March
24, 1995.
Eason filed a timely notice of appeal.
3
Discussion
We review the district court’s grant of summary judgment de
novo. Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir.) (citing
International Shortstop, Inc. v. Rally’s, 939 F.2d 1257, 1263 (5th
Cir. 1991)), cert. denied, 113 S.Ct. 82 (1992). Summary judgment
is proper if the moving party demonstrates the absence of a genuine
issue of material fact, a showing which entitles the movant to
summary judgment as a matter of law. Fed. R. Civ. P. 56(c); see
also Anderson v. Liberty Lobby, Inc., 106 S.Ct. 2505, 2506-2514
(1986). If the movant produces evidence tending to show that there
is no genuine issue of material fact, the nonmovant must then
direct the court’s attention to evidence in the record sufficient
to establish the existence of a genuine issue of material fact for
trial. Celotex Corp. v. Catrett, 106 S.Ct. 2548, 2552 (1986). In
this analysis, we review the facts and draw all inferences most
favorable to the nonmovant. Herrera v. Millsap, 862 F.2d 1157,
1159 (5th Cir. 1989). However, mere conclusory allegations are not
competent summary judgment evidence, and such allegations are
insufficient, therefore, to defeat a motion for summary judgment.
Topalian, 954 F.2d at 1131.
In his first point of error, Eason contends that his
constitutional rights were violated when he was placed on lockdown
without notice or an opportunity to be heard. Eason cites the
Supreme Court’s decision in Hewitt v. Helms, 103 S.Ct. 864 (1983),
in support of this contention. Hewitt involved the segregation of
4
a Pennsylvania state prisoner from the general prison population
during the investigation into his role in a prison riot. The Court
held that, “It is plain that the transfer of an inmate to less
amenable and more restrictive quarters for nonpunitive reasons is
well within the terms of confinement ordinarily contemplated by a
prison sentence.” Id. at 869. The Court further concluded that
such “administrative segregation” in the prison context——segregation
“used to protect the prisoner’s safety, to protect other inmates
from a particular prisoner, to break up potentially disruptive
groups of inmates, or simply to await later classification or
transfer”——did not implicate an interest independently protected by
the Due Process Clause. Id. at 869-870. However, after examining
the Pennsylvania statutes and regulations governing the
administration of state prisons, the Court found that Pennsylvania
had gone beyond the creation of simple procedural guidelines;
instead, the Pennsylvania regulations used language “of an
unmistakably mandatory character”, prohibiting the employment of
administrative segregation absent specific circumstances. Id. at
871. The Court held that Pennsylvania had vested in Helms a state-
created liberty interest in remaining in the general prison
population, thereby affording Helms the minimum protections of the
Due Process Clause. Id.
Recently, however, the Supreme Court has reconsidered the step
it took in Hewitt, observing that “the search for a negative
implication from mandatory language in prisoner regulations has
strayed from the real concerns undergirding the liberty protected
5
by the Due Process Clause.” Sandin v. Conner, 115 S.Ct. 2293, 2300
(1995). In Sandin, the Supreme Court considered a state inmate’s
due process challenge to his punitive segregation from the general
prison population, and concluded:
“The time has come to return to the due process
principles we believe were correctly established and
applied in [Wolff v. McDonnell, 94 S.Ct. 2963 (1974)] and
[Meachum v. Fano, 96 S.Ct. 2532 (1976)]. Following
Wolff, we recognize that States may under certain
circumstances create liberty interests which are
protected by the Due Process Clause. But these interests
will be generally limited to freedom from restraint
which, while not exceeding the sentence in such an
unexpected manner as to give rise to protection by the
Due Process Clause of its own force, nonetheless imposes
atypical and significant hardship on the inmate in
relation to the ordinary incidents of prison life.” Id.
(internal citations omitted).
In this case, however, we do not reach the impact of Sandin on
the methodology, developed in Hewitt and its progeny, for finding
a state-created liberty interest.1 Eason has failed to identify a
single statute, regulation or even internal TDCJ policy directive
as evidence of a state-created liberty interest in the present
case. Instead, Eason suggested at his Spears hearing that he was
entitled to official notice of the reasons for, and expected
duration of, the lockdown, and that he had not received such
1
We note, however, our observation in Orellana v. Kyle, No.
95-50252, slip op. (5th Cir. Aug. 11, 1995), that:
“Although Sandin cites with approval cases in which it
was held that state law could create a constitutional
liberty interest in good-time credits, or release on
parole, it is difficult to see that any other
deprivations in the prison context, short of those that
clearly impinge on the duration of confinement, will
hence-forth qualify for constitutional ‘liberty’ status.”
Id. at 5952-5953 (internal citations and footnote
omitted).
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notice. In an effort to substantiate this assertion, Eason asked
Warden Richard Thaler (Thaler) about this purported requirement of
formal notice. Thaler replied that there was no such requirement
under TDCJ regulations or policy, and that any progressive schedule
distributed——by word of mouth or otherwise——to the inmates during a
lockdown represented nothing more than a voluntary effort on the
part of prison officials to provide incentive for cooperation
between officials and inmates. Eason likewise failed to produce
any evidence in support of his contention that it was TDCJ policy
to collect the identification cards of prisoners involved in a
disturbance so as to limit lockdown status to only those inmates
who had been involved in the disturbance. In sum, there is an
absence of any evidence of a state-created liberty interest
protected under the Due Process Clause in the present case.
After conducting the Spears hearing in this case, the
magistrate judge concluded that Eason’s due process rights had not
been violated. First, the magistrate judge found no evidence to
indicate that Eason’s segregation from the general prison
population constituted punishment; this established, the defendant-
prison officials did not violate Eason’s constitutional rights by
the lockdown. Wilson v. Seiter, 111 S.Ct. 2321 (1991); Mitchell v.
Sheriff’s Department, Lubbock County, Texas, 995 F.2d 60 (5th Cir.
1993). Second, the magistrate found that the lockdown was
instituted so as to protect the security and integrity of the
prison unit, and to protect the prisoners from each other, pending
completion of the investigation into the November 12, 1992
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disturbance. The magistrate judge noted the Supreme Court’s
conclusion that procedural safeguards required by the Constitution
are relaxed with regard to prison lockdowns when the welfare and
security of an entire prison, or any part thereof, are threatened.
Hewitt, 103 S.Ct. at 473-475.
We find that, while Eason has alleged in a conclusory manner
that the lockdown was imposed for punitive reasons, he failed to
offer evidence that the lockdown was instituted out of any concerns
other than safety and prison security. Additionally, we find that
racial tension was at a high level as a result of the confrontation
between African-American and Hispanic inmates on November 12, and
that this hostility among inmates, and also between inmates and
correctional officers, resulted in the lockdown of Eason’s wing of
J-1 Building of the Smith Unit pending an investigation into the
causes of the disturbance. We further find that Eason has produced
no evidence that the lockdown violated TDCJ regulations or any
Texas statute. Even accepting as true Eason’s assertions that he
was innocent of any involvement in the November 12 disturbance,
Eason has raised no issue of fact which would require trial on the
merits of his due process claim.
In his second point of error, Eason alleges that he was
deprived of his constitutional right to nutritionally adequate
meals during the lockdown because numerous meals contained pork,
which he, as a Muslim, could not eat. To comply with the
Constitution, inmates must receive “reasonably adequate” food.
George v. King, 837 F.2d 705, 707 (5th Cir. 1988) (citations
8
omitted). Additionally, inmates retain the constitutional right to
practice their religious beliefs; “Restrictions thereon must be
reasonably related to legitimate penological interests.” Muhammad
v. Lynaugh, 966 F.2d 901, 902 (5th Cir. 1992) (footnote omitted).
We find that Eason failed to offer any evidence that the meals
he received during this twenty-six day lockdown were nutritionally
or otherwise constitutionally inadequate or improper. At the
Spears hearing, Eason asserted that he received only three hot
meals during the lockdown period, “one on one day and two on that
Friday [preceding the conclusion of the lockdown].” Eason further
testified that, in the twenty-six evening “johnny sack” meals,
every sack contained one peanut butter biscuit, and the second
sandwich in approximately ten of these twenty-six evening meals
featured a meat other than pork. Eason also alleged that the
guards delivering the johnny sacks would defile the contents of
these meals, spitting on sandwiches and kicking these sacks across
the floor; in the course of this lockdown period, Eason contends
that he lost twenty-six pounds. Of these assertions, only his
testimony pertaining to the maltreatment of food has any arguably
direct bearing on his constitutional claim. However, it is clear
from Eason’s Spears hearing testimony that none of the named
defendants are alleged to have participated in this misconduct.
Neither does Eason’s testimony piece together even a claim of
deliberate indifference on the part of any one of the named
defendants. Eason’s appellate briefs offer no help in identifying
the focus of his allegations in this respect because Eason fails to
9
explain how any of the defendants participated in or sanctioned
this purported misconduct. There is no respondeat superior
liability under section 1983. Therefore, we find that Eason has
produced no evidence sufficient to raise a genuine issue of
material fact regarding the liability of the defendants respecting
the nutritional adequacy of his meals during the lockdown.
In support of his claim that the inclusion of pork in his
meals infringed upon his constitutional right to practice his
religious beliefs, Eason attempted to produce evidence that the
defendants knew or had reason to know that he was a practicing
Muslim, and that they nevertheless ignored the dietary mandates of
his religion. Eason’s allegations in this regard are two-pronged.
First, he maintains that the appropriate officials at the Smith
Unit should have been aware of his religious affiliations because
officials at TDCJ’s William P. Hobby Unit (Hobby Unit), his
previous place of incarceration, were aware of, and acted in
accordance with, his Muslim beliefs. Second, Eason implies that he
made his religious orientation known to the appropriate persons in
the Smith Unit. With regard to his first contention, Eason
produced no evidence that his “travel card” indicated that he was
a Muslim prior to December of 1993, long after the lockdown in
question. Nor did he bring forward any evidence that officials in
the Smith Unit, presumably the defendants, should have been aware
of the religious identification he established while incarcerated
at the Hobby Unit on the basis of any other sources of information.
Until December of 1993, Eason’s travel card indicated that he was
10
a Baptist, and the Smith Unit officials in a position to
accommodate his religious affiliation——and corresponding dietary
needs——had no reason to believe otherwise.2 As to Eason’s implied
second contention, that he informed the appropriate prison
officials at the Smith Unit of his religious orientation prior to
the lockdown, we find that Eason introduced no evidence to
substantiate this claim. Eason asserts that, prior to the
lockdown, he approached “the doctor” at the Smith Unit for a
dietary card entitling him to pork-free meals. He testified that
this doctor denied the request because he had no medical reason for
such a dietary restriction. Eason further intimated at the Spears
hearing that he made his religious ties known to Sergeant Robert
Buckley, one of the defendants, during the lockdown. However,
Eason also conceded his understanding, at the time he spoke with
the Smith Unit doctor, that he would need to inform the kitchen
captain or the warden in order to obtain a pork free diet. Warden
Thaler clarified that Eason should have spoken with the chaplain in
order to be placed on the list of Muslim inmates at Smith Unit; it
was by speaking to the chaplain that Eason first established his
religious affiliations at the Hobby Unit, so he was clearly aware
of the existence of this channel of communication. Finally, Eason
testified that it was not until June 27, 1993, long after the
2
Even if Eason’s assertions raise a fact-issue as to whether
or not an administrative foul-up occurred regarding the religious
designation on his travel card, this would amount to no more than
a claim of negligence. Such a claim would not support his
allegations of a constitutional violation in this context. George,
837 F.2d at 707.
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lockdown at issue, that he first filed an official request at the
Smith Unit concerning the dietary mandates associated with his
religion. Eason has offered no evidence that he told any Smith
Unit official in a position to act on such a communication of his
religious affiliations. We therefore find that Eason has not
raised a fact-issue pertaining to his claim that, during the 1992
lockdown, the defendants violated his constitutional right to
practice his religion by knowingly failing to accommodate Eason’s
affiliation with the Muslim faith.
In his third point of error, Eason contends that he was denied
his constitutional right of access to the law library during the
lockdown. As we noted in Eason v. Thaler, if Eason was pursuing a
legal action which necessitated his use of the law library and
access to the library was denied, this deprivation could represent
a violation of his constitutional rights. 14 F.3d at 9-10 (citing
Bounds v. Smith, 97 S.Ct. 1491, 1498-1499 (1977)); see also Morrow
v. Harwell, 768 F.2d 619, 622 (5th Cir. 1985). However, we also
recognized that restrictions on direct access to legal materials
may be warranted when prison security is involved. Id. (citing
Caldwell v. Miller, 790 F.2d 589, 606 (7th Cir. 1986)). “While the
precise contours of a prisoner’s right of access to the courts
remain somewhat obscure, the Supreme Court has not extended this
right to encompass more than the ability of an inmate to prepare
and transmit a necessary legal document to a court.” Brewer v.
Wilkinson, 3 F.3d 816, 821 (5th Cir. 1993) (footnote omitted),
cert. denied, 114 S.Ct. 1081 (1994). Finally, to make out a claim
12
that his constitutional right of access to the courts has been
violated, Eason must have demonstrated that his position as a
litigant was prejudiced by his denial of access to the courts.
Walker v. Navarro County Jail, 4 F.3d 410, 413 (5th Cir. 1993).
Eason testified at the Spears hearing that he was denied
physical access to the prison library during the lockdown. He
further testified that, of the twenty (legal) books he requested
while confined to his cell, he received only sixteen. The prison
librarian testified that Eason requested only twelve books during
the lockdown, and that nine of these were delivered to him. While
the disparity between these numbers is irrelevant, it provides
context to the librarian’s testimony that three of the books
requested by Eason were already checked-out to other inmates.
Eason offered no evidence to suggest that books were denied to him
for reasons other than unavailability.
Any constitutional issue potentially raised by the prison’s
failure to provide Eason with every (legal) book he requested is of
no consequence, however, in light of Eason’s testimony
demonstrating that he was not prejudiced in any litigation as a
result of this alleged denial of access to the law library during
the lockdown. In answers to a questionnaire and in testimony,
Eason clarified that his denial of access to the courts had only
one impact on litigation in which he was currently involved: he
was delayed in filing a lawsuit under 42 U.S.C. Section 1983 in the
Western District of Texas. Eason testified that he filed this suit
after the lockdown had ended, and that he missed no deadlines in
13
doing so. The lawsuit was subsequently dismissed, but due solely
to Eason’s failure——well after the lockdown ended——to respond to a
motion. Eason has not directed this Court’s attention to any
evidence in the record sufficient to raise a genuine issue of fact
on this claim of denial of access to the prison law library.
In his final point of error, Eason contends that he was
exposed to natural gas during the lockdown as the result of a gas
leak which occurred on November 20, 1992. In his initial appellate
brief, Eason argued that this gas leak constituted gross negligence
on the part of the defendants, for which liability could be imposed
under the Civil Rights Act. In his supplemental brief, Eason
suggested that his exposure to the natural gas constituted cruel
and unusual punishment.
We hold that Eason was deemed to have abandoned this claim by
not raising it in the brief he submitted to this Court in his
original appeal, Eason v. Thaler, 14 F.3d 8 (5th Cir. 1994). In
that opinion, we considered only those claims presented in Eason’s
complaint which he expressly put before this Court on appeal; we
deemed the other claims presented in his complaint to have been
abandoned. Id. at 9 & n. 1. Eason included an allegation relating
to the November 20 gas leak in his original complaint; he did not,
however, raise this issue in his original appeal to this Court. We
hold that the district court exceeded the scope of the remand in
addressing this abandoned issue. See Daly v. Sprague, 742 F.2d
896, 900-901 (5th Cir. 1984).
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Furthermore, while it is clear that Eason abandoned his claims
relating to the November 20 gas leak, we note that Eason has
presented no evidence in support of his claim that the prison
officials’ gross negligence in permitting the gas leak to occur
constituted cruel and unusual punishment.3 In a recent opinion,
the Supreme court held that, in order for a prison official to
violate the Cruel and Unusual Punishments Clause, that official
must be “deliberately indifferent” to an inmate’s health or safety.
Farmer v. Brennan, 114 S.Ct. 1970, 1977 (1994). The Court
clarified in Farmer that the test for “deliberate indifference” was
“subjective recklessness as used in the criminal law”. 114 S.Ct.
at 1980.
In the present case, Eason alleges that a gas leak occurred in
his building while repairs were being made to the central heating
system. He testified that officials responded quickly to the
outcry raised by the inmates, releasing the inmates in A-wing——where
the alarm had first been given——within a matter of minutes; as to
the inmates housed in B-wing with Eason, however, prison officials
decided to leave them in their cells, choosing instead to turn on
the exhaust fans and relying on those fans to draw the gas out of
the B-wing cells. Eason further testified that, from the moment he
first detected the gas, he could smell gas in the air for only five
to seven minutes before it was drawn away by the exhaust fans.
3
We do not consider Eason’s claim under section 1983 as
negligence is not a theory for which liability may be imposed under
section 1983. Daniels v. Williams, 106 S.Ct. 662 (1986); Davidson
v. Cannon, 106 S.Ct. 668 (1986); Love v. King, 784 F.2d 708 (5th
Cir. 1986).
15
Conceding that officials reacted to the problem in a reasonable
amount of time, Eason distilled his complaint to the following:
(unnamed) prison officials could have avoided this gas leak, but
they failed to do so. Putting aside that Eason offered no evidence
as to who was responsible for this alleged failure nor how the
unnamed party or parties failed in their duties, the Supreme
Court’s opinion in Farmer clearly dispenses with this claim.
Conclusion
Having concluded that Eason has failed to direct this Court’s
attention to any evidence in the record sufficient to establish the
existence of a genuine issue of material fact for trial, the
judgment of the district court is accordingly
AFFIRMED.
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