1 IN THE UNITED STATES COURT OF APPEALS
2 FOR THE FIFTH CIRCUIT
3 _____________________
4 No. 94-60486
5 _____________________
6 ADISA R.A.M. AL-RA'ID, a/k/a
7 Thomas E. Jones,
8 Plaintiff-Appellant,
9 v.
10 THOMAS J. INGLE, JR., et al.,
11 Defendants-Appellees.
12 __________________________________________
13 Appeal from the United States District Court
14 for the Southern District of Texas
15 __________________________________________
16 November 7, 1995
17 Before SMITH, WIENER, and DeMOSS, Circuit Judges.
18 JERRY E. SMITH, Circuit Judge:
19 Adisa Al-Ra'id appeals a summary judgment for the defendants
20 in his 42 U.S.C. § 1983 action involving a confiscation of his
21 religious materials. We affirm.
22 I.
23 Al-Ra'id, a Muslim prisoner in the Texas Department of Crimi-
24 nal Justice ("TDCJ"), filed a complaint in state court against unit
25 chaplain Thomas J. Ingle, Jr., and Islamic chaplain Eugene Farooq.
26 Al-Ra'id alleged that on May 9, 1993, the defendants confiscated
27 some of his Islamic religious materials, depriving him of his right
28 freely to practice his religion because of his race and religious
29 beliefs.
30 According to Al-Ra'id, on May 9 he went to Ingle's office to
31 request photocopies of certain Islamic materials. Ingle was busy
32 and stated that Al-Ra'id could leave the originals in his office
33 for Ingle to review and copy later. Al-Ra'id contends, however,
34 that Ingle later reacted in the following manner:
35 Defendant Ingle notified the Appellant that he had read
36 said literature, and due to the fact that he (Defendant
37 Ingle) was a christian, he found the literature person-
38 ally degrading, insulting and repulsive, in addition to
39 expressing numerous other derogatory superlatives in
40 regards to the literature the Appellant had given Defen-
41 dant Ingle for photocopying.
42 The materials were not returned to Al-Ra'id.
43 Al-Ra'id filed a supplemental complaint in which he alleged
44 that the defendants had conspired to retaliate against him for
45 filing his lawsuit in violation of his right of access to the
46 courts.1 In particular, Al-Ra'id argued that the violations oc-
47 curred when defendants prohibited him from speaking, teaching, and
48 having a voice in the prison Islamic community.
49 The defendants removed the action to federal court, then filed
50 a motion to dismiss or for summary judgment, asserting, inter alia,
51 qualified immunity. The district court granted summary judgment on
52 qualified immunity grounds.
1
The defendants were sued only in their individual capacity. Because
there are no allegations against the defendants in their official capacity, it
is unnecessary to address any Eleventh Amendment concerns.
2
53 II.
54 We review summary judgment de novo, "reviewing the record
55 under the same standards which guided the district court." Gulf
56 States Ins. Co. v. Alamo Carriage Serv., 22 F.3d 88, 90 (5th Cir.
57 1994) (internal quotations omitted). Summary judgment is proper
58 "when no genuine issue of material fact exists that would necessi-
59 tate a trial." Id. In determining whether summary judgment was
60 proper, we view all factual questions in the light most favorable
61 to the non-movant. See Lemelle v. Universal Mfg. Corp., 18 F.3d
62 1268, 1272 (5th Cir. 1994).
63 In assessing qualified immunity, we engage in a two-step
64 analysis. First, we determine whether a plaintiff has alleged the
65 violation of a clearly established constitutional right under the
66 current state of the law. See Rankin v. Klevenhagen, 5 F.3d 103,
67 105-08 (5th Cir. 1993). Second, if the plaintiff has alleged such
68 a constitutional violation, we decide whether his defendant's
69 conduct was "objectively reasonable," measured by reference to the
70 law as clearly established at the time of the challenged conduct.
71 See Harper v. Harris County, Tex., 21 F.3d 597, 601 (5th Cir.
72 1994); Rankin, 5 F.3d at 108.
73 III.
74 A.
75 In the district court, Al-Ra'id claimed that the defendants
76 retaliated against him for initiating this civil action, in viola-
77 tion of his right of access to the courts. Al-Ra’id appears to
3
78 have waived or abandoned this issue on appeal, however, as he does
79 not brief it.
80 An appellant’s brief must contain an argument on the issues
81 that are raised, in order that we, as a reviewing court, may know
82 what action of the district court is being complained of. See FED.
83 R. APP. P. 28(a)(6). There is no exemption for pro se litigants,
84 though we construe their briefs liberally.
85 In the section of his brief discussing Eleventh Amendment
86 immunity, Al-Ra’id makes one passing reference to “the retaliatory
87 acts taken by Defendant Farooq against the Appellant after Appel-
88 lant initiated this civil action.” Later in the same Eleventh
89 Amendment immunity section, he again refers to the alleged
90 “retaliati[on] against the Appellant for petitioning the government
91 for the redress of grievances and utilizing his right to access to
92 courts.” No other mention is made of the retaliation claim, nor
93 does Al-Ra’id make any effort to inform us of what alleged error
94 the district court made in disposing of this issue. Accordingly,
95 we have nothing to review or rule upon; the issue is abandoned.
96 B.
97 Al-Ra'id argues that the chaplains "totally disregarded" the
98 established prison rules and regulations for confiscating personal
99 property, in violation of his due process rights. In Martin v.
100 Dallas County, Tex., 822 F.2d 553, 554-55 (5th Cir. 1987), the
101 plaintiff filed a § 1983 action alleging that he was held in jail
102 for 3½ weeks longer than his DWI sentence. He complained that his
4
103 wrongful incarceration constituted a deprivation of liberty without
104 due process of law. We held as follows:
105 Whether such deprivation came about intentionally or
106 negligently, both of which allegations are found in the
107 complaint, this aspect of the case falls within the
108 ambit of Parratt v. Taylor and Hudson v. Palmer.
109 Parratt and Hudson hold that no constitutional claim may
110 be asserted by a plaintiff who was deprived of his
111 liberty or property by negligent or intentional conduct
112 of public officials, unless the state procedures under
113 which those officials acted are unconstitutional or
114 state law fails to afford an adequate post-deprivation
115 remedy for their conduct.
116 Id. at 555 (citations omitted). We concluded that no
117 constitutional claim could be asserted, as adequate post-
118 deprivation remedies were available:
119 Texas law afforded Martin remedies against his illegal
120 detention both while it was underway and for post-
121 deprivation compensatory relief. Martin could have
122 sought habeas corpus relief pursuant to Tex. Crim. Proc.
123 Code Ann. art. 11.01 or tort recovery for false
124 imprisonment.
125 Id.
126 Similarly, Al-Ra'id's procedural due process claim2 cannot be
127 asserted, because adequate post-deprivation remedies are available
128 through the prison grievance procedure. The state points out that
129 there is a three-step grievance procedure available throughout the
130 TDCJ, and even Al-Ra'id admits that he "has appealed to the unit
131 warden via the inmate grievance procedure . . . ."
132 In fact, in Al-Ra'id's brief on appeal, he states that "[i]t
133 must be kept in mind that, Appellant's claim is not that [the TDCJ]
2
As we stated in Martin, the "[v]iolation of a substantive, as opposed to
a procedural, due process constitutional right does not fall within the
limitations of Parratt/Hudson." 822 F.2d at 555.
5
134 does not provide an adequate remedy or process in regards to
135 censorship of religious material, Appellant's complaint is that the
136 Defendants in this action circumvented the process due to the
137 Appellant . . . ." Because Al-Ra'id has an adequate post-
138 deprivation remedy and does not allege that the prison "censorship"
139 procedures themselves are invalid, summary judgment was properly
140 granted on his procedural due process claim. See also Sandin v.
141 Conner, 115 S. Ct. 2293 (1995).
142 C.
143 Al-Ra'id asserts that the confiscation of his legal materials
144 by Ingle and Farooq was motivated by racial discrimination.
145 According to Al-Ra'id, he was treated differently from other
146 prisoners by the chaplains because he is black. Al-Ra'id presents
147 no evidence to go beyond these generalized assertions, however, and
148 such conclusory allegations of malice are insufficient to maintain
149 his claim. Harlow v. Fitzgerald, 457 U.S. 800, 817-18 (1982).
150 D.
151 Al-Ra'id contends that the seizure of his religious materials
152 was an improper infringement on his freedom to practice his
153 religion. As mentioned, Al-Ra'id asserts that the confiscation was
154 prompted because of his Shiite Muslim religion, and he recounts
155 that Ingle told him that, as a Christian, Ingle found the
156 literature "degrading, insulting and repulsive."
157 Al-Ra'id's allegations were verified under penalty of perjury;
6
158 thus, they are deemed competent summary judgment evidence. See
159 Nissho-Iwai Am. Corp. v. Kline, 845 F.2d 1300, 1306-07 (5th Cir.
160 1988). In contrast, the state asserts that the confiscation
161 occurred "strictly out of concern for inmate security." The state
162 contends that "[d]efendants reasonably believed that the divisive
163 nature of Plaintiff's literature [which characterized Christians as
164 Satanists] may incite hostility and violence between religious
165 inmate groups."
166 The district court held that the defendants were entitled to
167 qualified immunity, noting that
168 [a]t the time the action was taken, the development of
169 the law with regard to the free exercise of religion by
170 prisoners was not at the stage where this Court must
171 conclude that the Defendant officials who confiscated
172 Plaintiff's religious material and denied Plaintiff his
173 attempts to lead the Wednesday night Muslim study class
174 . . . moved beyond the immunity to which they were
175 entitled.
176 We agree. Even in prison, the right to practice one's religious
177 beliefs is constitutionally protected. See, e.g., Muhammad v.
178 Lynaugh, 966 F.2d 901, 902 (5th Cir. 1992).
179 Al-Ra'id, however, has not carried his burden of defeating
180 defendants' qualified immunity defense. See Bennett v. City of
181 Grand Prairie, 883 F.2d 400, 408 (5th Cir. 1989). Bare allegations
182 of malice do not suffice to subject government officials either to
183 the costs of trial or to the burdens of broad-reaching discovery.
184 Harlow, 457 U.S. at 817-18 (1982).
185 And yet, Al-Ra'id has offered little more. His assertion that
186 Ingle stated he found the materials to be personally degrading,
187 insulting, and repulsive to him as a Christian))even if
7
188 proved))would not undermine defendants' qualified immunity claim.
189 Their interest in preventing the dissemination of the literature
190 was bottomed on its highly inflammatory and divisive character.
191 Ingle presented summary judgment evidence that he decided to
192 pass on the material to Farooq for inspection specifically because
193 it promoted violence and denounced Christianity as Satanism. Ingle
194 properly considered his own reactions to this intensely provocative
195 literature in evaluating what kind of effect it might have on the
196 inmates.
197 Moreover, the defendants' actions were not violative of
198 clearly established law. TDCJID Administrative Directive AD-7.30
199 specifies in its statement of policy that "no one shall disparage
200 the religious beliefs of any inmate, or other person . . . ." If
201 Ingle had assisted Al-Ra'id with the copying of the materials
202 denouncing Christians as Satanists, he would have been helping him
203 violate this regulation.
204 E.
205 Al-Ra'id filed motions for leave to file a second supplemental
206 complaint and a third supplemental complaint. The magistrate judge
207 granted the motions. The district court struck this order and
208 denied Al-Ra'id's motions to file his supplemental complaints. The
209 court stated that the supplemental complaints allege "additional
210 causes of action against additional defendants," and it noted that
211 Al-Ra'id could refile the complaints as new actions if he so
212 desired.
8
213 The decision to grant or deny a motion to amend is entrusted
214 to the sound discretion of the district court. Norman v. Apache
215 Corp., 19 F.3d 1017, 1021 (5th Cir. 1994); Avatar Exploration, Inc.
216 v. Chevron, U.S.A., Inc., 933 F.2d 314, 320 (5th Cir. 1991). On
217 appeal, Al-Ra'id argues that the district court erred, but he
218 provides no support for this assertion other than stating that
219 because the district court erred in granting summary judgment, it
220 also erred in striking the order.
221 Al-Ra'id has cited no caselaw or factual support to bolster
222 his contention, and he has effectively abandoned his claim by
223 failing to brief it. See, e.g., Brinkmann v. Abner, 813 F.2d 744,
224 748 (5th Cir. 1987). Moreover, we fail to see any prejudice
225 suffered by Al-Ra'id, and we therefore find no error.
226 AFFIRMED.
9
227 WIENER, Circuit Judge, concurring in part and dissenting in part.
228 I concur in the panel majority's opinion and judgment to the
229 extent that it affirms the district court's dismissal of Al-Raid's
230 claims against the prison chaplains for allegedly disregarding
231 established prison rules (section III.B.), racial discrimination
232 (III.C.), and infringement on the free exercise of his religion
233 (III.D.), as well as our rejection of Al-Ra'id's allegation that
234 the district court erred in refusing to grant his motion to amend
235 his complaint to add new causes of action and new defendants. I
236 dissent, however, from the panel majority's affirmance of the
237 district court's dismissal of Al-Ra'id's claim that the defendants
238 acted against him in retaliation for his attempt to assert his
239 Constitutional right of access to the courts (section III.A.).
240 Al-Ra'id is a prisoner in the Texas state system, proceeding
241 pro se and in forma pauperis (IFP). That we construe the pleadings
242 of such parties liberally is so well established that no citation
243 is required. Despite such liberality, however, the panel majority
244 concludes that Al-Ra'id's briefing is so deficient that it
245 constitutes abandonment of the retaliation issue on appeal. I am
246 frankly at a loss to see how that conclusion can be justified.
247 First, Al-Ra'id filed a notice of appeal to the order of the
248 district court granting summary judgment and dismissing all of his
249 claims. One of these claims was grounded in retaliation for
250 exercising his Constitutional right of access to the courts. In
251 demonstrating to this court that he wished to pursue that claimSQat
10
252 least implicitly demonstrating his belief that the district court
253 had erred in such dismissalSQAl-Ra'id stated in his brief both
254 facts and law implicating the claim:
255 Appellant sues for the continuing deprivation
256 of his Islamic literature without due process,
257 . . . and the retaliatory acts taken by
258 Defendant Farooq against the Appellant after
259 Appellant initiated this civil action.
260 (emphasis added).
261 Two pages later in his brief, Al-Ra'id stated:
262 Defendant Farooq's involvement in . . .
263 retaliating against the Appellant for
264 petitioning the government for the redress of
265 grievances and utilizing his right to access
266 to the courts. (emphasis added).
267 Elsewhere in his brief Al-Ra'id details the acts of alleged
268 retaliation, implicating the confiscation of his Islamic religious
269 materials. The majority opinion is correct in noting that Al-
270 Ra'id's legal and factual allegations concerning retaliation appear
271 in the part of his brief discussing Eleventh Amendment immunity
272 while, ideally, it should have been in the part discussing
273 qualified immunity. But if that type of "wrong pew" organizing of
274 a brief by a pro se IFP prisoner is not the kind of imperfection
275 that is excused by liberal construction, it is hard for me to
276 envision either the justice in or utility of the rule.
277 It is true that Al-Ra'id did not cite case law, did not utter
278 magic words about the district court committing reversible error,
279 and did not file with us a brief that is a paragon of clarity and
280 legal syntax. Yet the purpose of our briefing requirements is
281 clearly met: Neither this court nor the defendants can
282 legitimately turn a blind eye to the above-quoted statements from
11
283 Al-Ra'id's brief, for they obviously serve the briefing rule's
284 purpose of alerting us and the defendants to the legal and factual
285 bases of Al-Ra'id's appeal from the district court's dismissal of
286 his retaliation claim. Even if Al-Ra'id is confused or does not
287 know the difference between qualified immunity and Eleventh
288 Amendment immunity, we and counsel for the Defendants certainly do.
289 And, like our liberal construction rule, the cause of action in
290 retaliation for accessing the courts is so well and long
291 established as to need no citation.3
292 In all candor, I would not "bet the farm" on Al-Ra'id's
293 likelihood of obtaining a judgment based on retaliation, were we to
294 allow his claim to be tried. Neither do I ignore the burden placed
295 on the courts, law enforcement, prison administration, and
296 government in general, that is caused by the burgeoning
297 "recreational" litigation instigated by persons incarcerated. But
298 the resolution of this problem, if there is one, must result from
299 the development of a comprehensive, principled plan, not from
300 sweeping claims under the legal carpet on an ad hoc basis.
301 As I would reverse the district court's dismissal of Al-
302 Ra'id's claim of retaliation, I respectfully dissent, but only on
303 that issue. In all other respects I concur.
3 See, e.g., Woods v. Smith, 60 F.3d 1161, 1164 (5th Cir. 1995).
12