stating that there is no protected interest in contraband
How later courts described this case
- stating that there is no protected interest in contraband
- an inmate does not have a protected property interest in the possession of contraband
Written by the judges who cited it.
The opinion
Case: 10-41202 Document: 00511754628 Page: 1 Date Filed: 02/10/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 10, 2012
No. 10-41202
Summary Calendar Lyle W. Cayce
Clerk
DWIGHT SULLIVAN,
Plaintiff-Appellant
v.
STEPHANIE G. DERAMCY; SERGEANT BOBBY J. HANNA; SERGEANT
RICKY JUDD; CORRECTIONAL OFFICER 5 NINA L. BURGESS; DAVID
COLEMAN; CORRECTIONAL OFFICER 3 LORI A. PRICE,
Defendants-Appellees
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 5:08-CV-168
Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
Dwight Sullivan, Texas prisoner # 437084, appeals from the district court’s
summary judgment dismissal of his 42 U.S.C. § 1983 complaint. He had argued
that prison officials violated his constitutional rights by using excessive force,
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-41202 Document: 00511754628 Page: 2 Date Filed: 02/10/2012
No. 10-41202
interfering with his mail, taking his property, retaliating against him, filing
false disciplinary cases, and failing to properly investigate a grievance.
On appeal, Sullivan reiterates his claims and asserts in general terms
that, by rejecting those claims, the district court undermined his right to
fundamental fairness and failed to afford him all of the safeguards to which he
was due. He also contends that we should apply “the conscience of the court” to
his case. Those arguments are based on the propriety of the summary judgment
ruling, and are subsumed by consideration of Sullivan’s underlying § 1983
claims.
Sullivan also asserts that the defendants were barred by collateral
estoppel from relitigating issues that were presented in , Ruiz v. Estelle, 503 F.
Supp. 1265 (S.D. Tex. 1980), rev’d in part, 679 F.2d 1115 (5th Cir. 1982),
modified in part, 688 F.2d 266 5th Cir. (1982); Ruiz v. Johnson, 37 F. Supp. 2d
855 (S.D. Tex.), rev’d 178 F.3d 385 (5th Cir. 1999) and United States v. Taylor,
487 U.S. 326 (1988). However, the Ruiz decree, by itself, does not create
constitutional rights that may be vindicated in Section 1983 suits by individual
prisoners. See Green v. McKaskle, 788 F.2d 1116, 1123 (5th Cir. 1986). Sullivan
has not shown that Taylor has any bearing on his case. See Taylor, 487 U.S. at
327-28.
“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). If the moving party meets
this initial burden, then the burden shifts to the nonmovant to set forth specific
evidence to support his claims. Duffie v. United States, 600 F.3d 362, 371 (5th
Cir.), cert. denied, 131 S. Ct. 355 (2010). If, as in this case, a party asserts
immunity, the burden shifts to the opposing party to rebut that assertion.
See Hathaway v. Bazany, 507 F.3d 312, 319 (5th Cir. 2007). When a defendant
pleads qualified immunity, the court must determine whether the facts alleged
by the plaintiff set forth a violation of a constitutional right and whether the
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Case: 10-41202 Document: 00511754628 Page: 3 Date Filed: 02/10/2012
No. 10-41202
constitutional right was clearly established at the time of the alleged
misconduct. Ontiveros v. City of Rosenberg, Tex., 564 F.3d 379, 382 (5th Cir.
2009). We review a grant of summary judgment de novo. Dillon v. Rogers, 596
F.3d 260, 266 (5th Cir. 2010).
A review of the record reveals that the district court did not err in rejecting
Sullivan’s claims and granting the defendants summary judgment based on their
Eleventh Amendment immunity and qualified immunity from suit. Sullivan’s
use of force complaints fail because the evidence shows that Sullivan provoked
the use of force by the guards and received either minor or no injuries. See
Hudson v. McMillian, 503 U.S. 1, 7 (1992). Sullivan’s claim that the defendants
took his personal property fails because he had adequate post-deprivation
remedies. See Allen v. Thomas, 388 F.3d 147, 149 (5th Cir. 2004). To the extent
that the property was removed from his possession because it was contraband,
Sullivan’s claim fails because he did not have a protected interest in that
property. See McCrae v. Hankins, 720 F.2d 863, 869 (5th Cir. 1983) (citation
omitted), abrogated on other grounds by Hudson v. Palmer, 468 U.S. 517, 531-33
(1984). Sullivan failed to raise a material fact issue on his complaints of
retaliation, the filing of false disciplinary cases, and interference with his mail
sufficient to withstand a motion for summary judgment. See Douglass v. United
Servs. Auto. Ass’n, 79 F.3d 1415, 1429 (5th Cir. 1996)(en banc); Woods v. Smith,
60 F.3d 1161, 1166 (5th Cir. 1995). Finally, Sullivan’s claim that his grievance
was not properly investigated fails because he has no protected liberty interest
in having prison grievances resolved to his satisfaction. See Geiger v. Jowers,
404 F.3d 371, 374 (5th Cir. 2005).
The district court’s judgment is AFFIRMED.
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