# Sylvester v. Cain

> Court of Appeals for the Fifth Circuit · March 11, 2009 · 311 F. App'x 733

URL: https://www.frixlaw.com/law-library/cases/65047

## Case

- **Full name:** Larry J. SYLVESTER, Plaintiff-Appellant v. Burl CAIN; Nobts/Southern Baptist Convention; Donald Barr; Unknown Briggs; William Cassidy; Ronnie Constance; Jimmy Dukes; Leslie Du-Pont; Sergeant Unknown Gallespie; Willard Gauthier; Charles Kelly; Lawrence Kelly; Davy Kelone; Blaine Lachney; Paul Myers; Rhonda Nettles; Dora Rabalais; Tanya Ritchie; Wilbert Robertson; John Robson; Richard L. Stalder; Merritt Thomas; Robert Toney; Darrel Vannoy; Ernest Williams, Defendants-Appellees
- **Court:** Court of Appeals for the Fifth Circuit
- **Decided:** March 11, 2009
- **Citations:** 311 F. App'x 733
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Judges:** Jolly, Benavides, Haynes
- **Cited by:** 7 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/65047

## Opinion text

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
February 20, 2009
No. 07-30790
Summary Calendar Charles R. Fulbruge III
Clerk

LARRY J SYLVESTER

Plaintiff-Appellant

v.

BURL CAIN; NOBTS/SOUTHERN BAPTIST CONVENTION; DONALD BARR;
UNKNOWN BRIGGS; WILLIAM CASSIDY; RONNIE CONSTANCE; JIMMY
DUKES; LESLIE DUPONT; SERGEANT UNKNOWN GALLESPIE; WILLARD
GAUTHIER; CHARLES KELLY; LAWRENCE KELLY; DAVY KELONE;
BLAINE LACHNEY; PAUL MYERS; RHONDA NETTLES; DORA RABALAIS;
TANYA RITCHIE; WILBERT ROBERTSON; JOHN ROBSON; RICHARD L
STALDER; MERRITT THOMAS; ROBERT TONEY; DARREL VANNOY;
ERNEST WILLIAMS

Defendants-Appellees

Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:04-CV-572

Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
Larry J. Sylvester, Louisiana prisoner # 78014, appeals the district court’s
dismissal of his civil rights complaint, in which he alleged claims of involuntary

*
Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
No. 07-30790

job reclassification, involuntary housing transfer, and improper, retaliatory
punishment. After reviewing Sylvester’s complaint, the district court ordered
the Louisiana Department of Public Safety and Corrections to file a certified
copy of administrative remedy proceedings conducted with respect to Sylvester’s
claims. Thereafter, the magistrate judge issued a report and recommendation
finding that Sylvester had exhausted his administrative remedies with respect
to some of his claims, but that others should be dismissed without prejudice for
failure to exhaust. The district court adopted the magistrate judge’s report and
recommendation. Subsequently, some defendants filed a motion to dismiss
based on qualified immunity, and Sylvester and some defendants filed motions
for partial summary judgment with respect to exhaustion of administrative
remedies. The district court dismissed Sylvester’s entire complaint for failure
to state a claim upon which relief can be granted pursuant to 28 U.S.C.
§§ 1915(e)(2)(B), 1915A, denied as moot the parties’ cross-motions for partial
summary judgment, and dismissed without prejudice Sylvester’s state law
claims. This court reviews the district court’s dismissal of Sylvester’s complaint
de novo. See Black v. Warren, 134 F.3d 732, 733-34 (5th Cir. 1998).
Sylvester asserts that the district court erred in concluding that the
moving defendants-appellees were entitled to qualified immunity with respect
to Sylvester’s First Amendment claims. In support of his argument, Sylvester
asks this court to reference his district court pleadings. Sylvester also makes
various conclusory allegations regarding the defendants-appellees’
discriminatory and retaliatory treatment of him. Sylvester’s conclusional
allegations are insufficient to defeat the defendants-appellees entitlement to
qualified immunity. See Thompson v. City of Starkville, Miss., 901 F.3d 456, 469
n. 13 (5th Cir. 1990). Furthermore, although pro se briefs are afforded liberal
construction, Haines v. Kerner, 404 U.S. 519, 520 (1972), even pro se litigants
must brief arguments in order to preserve them. Yohey v. Collins, 985 F.2d 222,
224-25 (5th Cir. 1993). Sylvester may not incorporate by reference the

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No. 07-30790

arguments that he made in his district court pleadings. See Yohey, 985 F.2d at
224-25.
Sylvester asserts that the district court violated the principles announced
in Cooper v. Sheriff, Lubbock County, Tex., 929 F.2d 1078, 1083 (5th Cir. 1991)
when it dismissed his lawsuit without reviewing the prison’s religious
accommodation regulations. Sylvester did not make this argument in the
district court. This court does not consider claims raised for the first time on
appeal. Stewart Glass & Mirror, Inc. v. U.S. Auto Glass Discount Centers, Inc.,
200 F.3d 307, 316-17 (5th Cir. 2000).
Sylvester asserts that the prison’s regulations entitled him to procedural
due process when the prison officials changed his job and housing classification.
In order to demonstrate a procedural due process violation, Sylvester must first
identify a constitutionally protected liberty or property interest. Board of
Regents v. Roth, 408 U.S. 564, 569-70 (1972). Sylvester argues that he had a
protected liberty interest in the “classification and religious accommodation
regulations,” and that the prison violated that interest when it denied him the
opportunity to be heard with respect to his job and housing reclassification.
Sylvester’s allegations do not implicate a protected liberty interest. See Sandin
v. Conner, 515 U.S. 472, 484 (1995); Wilson v. Budney, 976 F.2d 957 (5th Cir.
1991) (holding that prison inmates do not have a protectable liberty or property
interest in custodial classification); Jackson v. Cain, 864 F.2d 1235, 1250 (5th
Cir. 1989) (holding that prison inmates have no constitutionally protected liberty
interest in their job assignments). Furthermore, with respect to Sylvester’s
claim that the defendants-appellees did not follow their procedures regarding his
reclassification hearing, his claim is not cognizable since violations of state law
and prison regulations, without more, do not state a viable constitutional claim
under § 1983. See Giovanni v. Lynn, 48 F.3d 908, 912-13 (5th Cir. 1995); Myers
v. Klevenhagen, 97 F.3d 91, 94 (5th Cir. 1996).

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No. 07-30790

Sylvester asserts that the district court erred in dismissing his religious
retaliation claim. Sylvester argues that he was retaliated against on the basis
of his religion when he filed a grievance regarding his reclassification and when
he was disciplined by the prison. Prisoners’ claims of retaliation are regarded
with skepticism and are carefully scrutinized by the courts. Woods v. Smith, 60
F.3d 1161, 1166 (5th Cir. 1995). “To state a claim of retaliation an inmate must
allege the violation of a specific constitutional right and be prepared to establish
that but for the retaliatory motive the complained of incident . . . would not have
occurred.” Id. In his appellate brief, Sylvester admits that he refused to comply
with the prison’s orders regarding his reclassification. Thus, Sylvester’s conduct,
standing alone, supports the disciplinary charge levied against him. Sylvester
then contends that his refusal to comply “substantially motivated” the
disciplinary action taken against him. Accordingly, Sylvester has not
established that “but for” the alleged retaliatory motive of the defendants, he
would not have been disciplined.
Sylvester asserts that the district court erred in concluding that he had
failed to exhaust his administrative remedies under 42 U.S.C. § 1997e(a) with
respect to his claims that the moving defendants-appellees (1) discriminated
against him on the basis of his religion; (2) allowed other inmates to refuse
participation in faith-based programs; (3) engaged in the generalized denial of
equal protection; (4) retaliated against him on the basis of his religion; (5) acted
with deliberate indifference to his medical needs; (6) violated the Separation of
Church and State Clause; and (7) violated the Establishment Clause.
Exhaustion is mandatory, and since § 1997e was amended, this court has “taken
a strict approach to the exhaustion requirement.” Days v. Johnson, 322 F.3d
863, 865-66 (5th Cir. 2003), overruled by implication on other grounds by Jones
v. Bock, 127 S. Ct. 910, 920-21 (2007). Contrary to his assertion, the district
court concluded that Sylvester had exhausted his administrative remedies
relative to his claims that the defendants-appellees (1) discriminated against

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No. 07-30790

him on the basis of his religion; (2) allowed other inmates to refuse participation
in faith-based programs; (3) retaliated against him on the basis of his religion;
(4) violated the Separation of Church and State Clause; and (5) violated the
Establishment Clause. With respect to his equal protection argument, Sylvester
refers this court to his district court pleadings, suggesting that such pleadings
prove that similarly situated individuals were treated differently from him.
Sylvester may not incorporate by reference the arguments that he made in his
district court petition. Yohey, 985 F.2d at 224-25. Because Sylvester has failed
to brief this claim, it is deemed abandoned. See Hughes, 191 F.3d at 613.
Finally, with respect to his deliberate indifference claim, the record reflects that
Sylvester failed to exhaust his administrative remedies as mandated by § 1997e.
Sylvester asserts that the district court erred in refusing to consider his
claims arising under the Religious Land Use and Institutionalized Persons Act.
Sylvester did not make this argument in the district court. This court does not
consider claims raised for the first time on appeal. Stewart Glass & Mirror, 200
F.3d at 316-17.
Sylvester asserts that he was denied access to the courts because he was
denied access to an adequate law library and had to rely on various legal aid
programs. Sylvester did not make this argument in the district court. This
court does not consider claims raised for the first time on appeal. Id.
Sylvester asserts that the district court erred in failing to rule on his cross-
motion for summary judgment, in which he argued exhaustion of administrative
remedies. Sylvester’s argument is without merit as the record reflects that the
district court dismissed as moot Sylvester’s motion.
Sylvester asserts that the district court erred in denying his motions for
default judgment. This court reviews a district court’s “administrative handling
of a case, including its enforcement of the local rules and its own scheduling
orders[,] for abuse of discretion.” Macklin v. City of New Orleans, 293 F.3d 237,
240 (5th Cir. 2002). The record reflects that the district court did not abuse its

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No. 07-30790

discretion with respect to Sylvester’s motions for default judgment. Sylvester
has established no grounds upon which a default judgment against the
defendants would have been appropriate when Sylvester filed his motions.
Sylvester asserts that the district court erred in denying his motion to
compel the defendants-appellees to follow their administrative remedy
procedures, arguing that he had a liberty interest in the grievance process.
Sylvester’s allegations do not implicate a protected liberty interest. See Sandin,
515 U.S. at 484.
Finally, Sylvester asserts that the defendants-appellees’ reclassification
of him was unconstitutional. Sylvester also asserts that the district court erred
when it refused to grant his request for injunctive relief. Because Sylvester has
failed to brief these claims, they are deemed abandoned. See Yohey, 985 F.2d at
244-45; Hughes v. Johnson, 191 F.3d 607, 613 (5th Cir. 1999).
Sylvester has also filed a motion for leave to file a supplemental brief,
arguing that the district court should have invoked its jurisdiction over his state
law claims. The district court declined to do so because it had dismissed all of
the claims over which it had original jurisdiction. See 28 U.S.C. § 1367.
Sylvester has failed to establish in his motion that the district court erred in
refusing to invoke its jurisdiction.
The district court’s dismissal of Sylvester § 1983 suit for failure to state a
claim counts as a strike for purposes of 28 U.S.C. § 1915(g). See Adepegba v.
Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). Sylvester is warned that once
he accumulates three strikes, he may not proceed in forma pauperis in any civil
action or appeal filed while he is incarcerated or detained in any facility unless
he is under imminent danger of serious physical injury. See § 1915(g).
The judgment of the lower court is AFFIRMED. Sylvester’s motion for
leave to file a supplemental brief is DENIED. SANCTION WARNING ISSUED.

6

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/65047. Public record. Not legal advice.