Robert Bonner v. Bob Alford

Case: 14-10179 Document: 00512947997 Page: 1 Date Filed: 02/25/2015

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-10179

Summary Calendar

United States Court of Appeals

Fifth Circuit

FILED

February 25, 2015

ROBERT WALTER BONNER,

Lyle W. Cayce

Clerk

Plaintiff-Appellant

v.

BOB ALFORD, Johnson County Sheriff, TONY RAY,

Defendants-Appellees

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:10-CV-2556

Before STEWART, Chief Judge, and ELROD and HIGGINSON, Circuit

Judges.

PER CURIAM: *

Robert Walter Bonner, Texas prisoner # 1561662, seeks to appeal the

district court’s grant of the appellees’ motion for judgment on the pleadings

and, alternatively, motion for summary judgment dismissing his 42 U.S.C.

§ 1983 complaint. In his complaint, Bonner contended that the appellees

violated his Fourteenth Amendment due process rights while he was a pretrial

* 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.

Case: 14-10179 Document: 00512947997 Page: 2 Date Filed: 02/25/2015

No. 14-10179

detainee when, without a hearing, he was placed in administrative segregation

and was required to wear restraints during his criminal trial. He also asserted

that his placement in administrative segregation and confinement in an

unsanitary cell, where he was allegedly denied certain privileges and was

prevented from contacting his family and attorney, violated the Eighth and

Fourteenth Amendments. Finally, he contended that his administrative

segregation and placement in restraints violated his equal protection rights.

The district court determined that Bonner’s claims concerning his

confinement in an unsanitary cell and the denial of privileges and contact with

family and counsel were unexhausted. The district court held further that,

because Bonner failed to present evidence of constitutional violations, the

appellees were entitled to qualified immunity on his remaining claims.

We review a district court’s order granting a Federal Rule of Civil

Procedure 12(c) motion for judgment on the pleadings de novo, using the same

standards applied to a Rule 12(b)(6) motion to dismiss. In re Great Lakes

Dredge & Dock Co., 624 F.3d 201, 209-10 (5th Cir. 2010). “The court shall grant

summary judgment 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.”

FED. R. CIV. P. 56(a). When, as here, the defendant officials plead qualified

immunity, the plaintiff bears the burden of rebutting the defense by

establishing a genuine dispute as to whether the officials’ conduct violated a

constitutional right of the plaintiff and whether that right was clearly

established at the time of the violation. Brown v. Callahan, 623 F.3d 249, 253

(5th Cir. 2010).

Bonner argues that the district court erred in finding that his claim

regarding the unsanitary condition of his cell was unexhausted. Under the

PLRA, “[n]o action shall be brought with respect to prison conditions under

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No. 14-10179

section 1983 of this title, or any other Federal law, by a prisoner confined in

any jail, prison, or other correctional facility until such administrative

remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). Bonner did

not follow the required grievance process by presenting his allegations

regarding the unsanitary condition of his cell in both steps of the Johnson

County Jail two-step grievance process, and he consequently failed to exhaust

that process. See Woodford v. Ngo, 548 U.S. 81, 90 (2006).

With regard to his claim regarding his placement in administrative

segregation, this court has held that “absent extraordinary circumstances,

administrative segregation as such, being an incident to the ordinary life as a

prisoner, will never be a ground for a constitutional claim.” Pichardo v. Kinker,

73 F.3d 612, 612-13 (5th Cir. 1996). The summary judgment evidence

established that Bonner was moved to administrative segregation out of a

concern for his safety due to the nature of the charges against him and his

impending trial and for the legitimate penological concerns of jail security. See

McCord v. Maggio, 910 F.2d 1248, 1251 (5th Cir. 1990).

Bonner avers that the defendants were deliberately indifferent to his

safety when they placed him in administrative segregation. This deliberate

indifference claim and attendant specific factual allegations are raised for the

first time on appeal; the claim is not considered. See Stewart Glass & Mirror,

Inc. v. U.S. Auto Glass Discount Centers, Inc., 200 F.3d 307, 316-17 (5th Cir.

2000). To the extent that Bonner made any allegations in the district court

concerning deliberate indifference, his contentions did not show that prison

officials “knew of and disregarded an excessive risk to [his] health or safety.”

Gibbs v. Grimmette, 254 F.3d 545, 549 (5th Cir. 2001).

Bonner’s claim regarding his placement in restraints is without merit.

The summary judgment evidence showed that Tony Ray was not personally

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No. 14-10179

involved in the decision to place him in restraints. See Johnson v. Dallas

Indep. Sch. Dist., 38 F.3d 198, 200 (5th Cir. 1994). Although Bob Alford

recommended to the trial court that Bonner be fitted with restraints due to the

nature of the charges pending against him and security concerns that existed

as a result of these charges, the ultimate decision to place Bonner in restraints

remained with the trial court. See United States v. Fields, 483 F.3d 313, 356-

57 (5th Cir. 2007). Accordingly, this claim is not legally supportable against

Alford.

We also find without merit Bonner’s equal protection claim. Bonner

failed to state a “class of one” equal protection claim because his allegations

did not identify any similarly situated prisoners, nor did his allegations show

that he was intentionally treated differently from any other prisoners absent

a rational basis. See Village of Willowbrook v. Olech, 528 U.S. 562, 564-65

(2000).

Because Bonner has failed to show that the appellees violated a clearly

established constitutional right, the appellees were entitled to qualified

immunity on Bonner’s claims. See Lytle v. Bexar County, Tex., 560 F.3d 404,

409 (5th Cir. 2009). The judgment of the district court is affirmed.

AFFIRMED.

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