IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 95-40759
Summary Calendar
MICHAEL ROSE,
Plaintiff-Appellant,
versus
WOODS, Warden; M. DIAZ, Assistant Warden;
EASON, Captain; INGLE, Captain; CANO, Case Manager,
Defendants-Appellees.
Appeal from the United States District Court for the
Southern District of Texas
(C-95-CV-144)
July 29, 1996
Before GARWOOD, WIENER and PARKER, Circuit Judges.*
PER CURIAM:
Plaintiff-appellant Michael Rose (Rose), a prisoner confined
in the Texas Department of Criminal Justice (TDCJ), McConnell Unit,
appeals the dismissal under 28 U.S.C. § 1915(d) of his pro se, in
forma pauperis civil rights suit against several TDCJ McConnell
*
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this opinion should not be published and is not precedent except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.
Unit personnel.
Rose’s complaint concerning an eight-day lock-down was
properly dismissed under Sandin v. Conner, 115 S.Ct. 2293, 2300-02
(1995). See also Luken v. Scott, 71 F.3d 192, 193 (5th Cir. 1995).
Similarly, claims that grievance procedures and TDCJ rules and
prior court remedial orders were not followed were likewise
properly dismissed. See Woods v. Edwards, 51 F.3d 577, 582 (5th
Cir. 1995); Murphy v. Collins, 26 F.3d 541, 543 (5th Cir. 1994).
Rose’s unexplained invocation of 42 U.S.C. § 1997(e) does not
change that result. Rose’s purely conclusory RICO claims were also
properly dismissed as frivolous. No abuse of discretion is shown
in the transfer of all these claims from the Eastern to the
Southern District of Texas, where the McConnell Unit is located, in
the failure to appoint counsel for Rose, or in the denial of
injunctive relief. No error is shown as to any of these matters.
Finally, we consider Rose’s claim relating to not being
allowed to attend religious services. Significant restrictions on
such attendance must have some relation to legitimate penological
interests. Muhammad v. Lynaugh, 966 F.2d 901, 902 (5th Cir. 1992).
The district court dismissed this claim, concluding that Rose
“fails to allege that he had been denied reasonable opportunities
to worship.” However, the dismissal was without a hearing under
Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985), or any
questionnaire, and no leave to amend was afforded. While Rose’s
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pleading is somewhat summary in this respect, it does not facially
appear wholly unlikely that with further exploration and
specificity Rose could state a claim in this regard; it is unclear
at this stage of the lawsuit whether Rose’s alleged exclusion from
Jumu’ah Friday service (or services) has or had any logical
relation to a legitimate state penological interest. Under the
circumstances, the district court’s dismissal of this claim was
premature and Rose should have been afforded an opportunity to
offer a more detailed set of factual allegations (or a Spears
hearing or questionnaire) in this respect. See Eason v. Thaler, 14
F.3d 8, 9-10 (5th Cir. 1994). We do not preclude section
1915(d)——or other pre-trial——dismissal of this claim on further
development following remand.
Accordingly, the district court’s dismissal of Rose’s claim
concerning not being allowed to attend religious services is
vacated and that claim is remanded for further proceedings
consistent herewith; in all other respects, the district court’s
judgment is affirmed.
AFFIRMED in part; VACATED and REMANDED in part
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