Clarence Jones v. Richard Alfred

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

November 30, 2009

No. 09-40256

Summary Calendar Charles R. Fulbruge III

Clerk

CLARENCE JONES,

Plaintiff-Appellant,

versus

RICHARD ALFRED, Warden; LOREN EDWARDS, Chaplain;

JEREMIAH WITT, Correctional Officer II,

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of Texas

No. 9:08-CV-65

Before DAVIS, SMITH, and OWEN, Circuit Judges.

JERRY E. SMITH, Circuit Judge:*

Clarence Jones, a state prisoner, appeals a summary judgment in favor of

the defendant prison officials on his claims under the Religious Land Use and

*

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.

No. 09-40256

Institutionalized Persons Act (“RLUIPA”) and 42 U.S.C. § 1983. He asserts that

he was denied the right to attend Muslim religious services while on cell restric-

tion. The defendants do not deny the assertion but say that prisoners on cell re-

striction were not allowed to attend religious services, pursuant to a prison poli-

cy (AD-03.70) that has since been changed. We affirm.

We review a summary judgment de novo. Mayfield v. Tex. Dep’t of Crim-

inal Justice, 529 F.3d 599, 603 (5th Cir. 2008). Summary judgment is appropri-

ate “if the pleadings, the discovery and disclosure materials on file, and any affi-

davits show that there is no genuine issue as to any material fact and that the

movant is entitled to judgment as a matter of law.” F ED. R. C IV. P. 56(c). “We

are not bound by the reasons articulated by the district court . . . and may affirm

the judgment on other grounds.” Chriceol v. Phillips, 169 F.3d 313, 315 (5th Cir.

1999).

As the district court recognized, Jones’s request for injunctive relief to al-

low prison inmates on cell restriction to attend religious services is moot.1 Texas

officials amended the applicable policy to allow for the very thing Jones asked

for.2

Furthermore, the “voluntary cessation” exception to mootness is inapplica-

ble. As we stated in Sossamon v. Texas, 560 F.3d 316, 325 (5th Cir. 2009), peti-

tion for cert. filed, 77 U.S.L.W. 3657 (May 22, 2009) (No. 08-1438), “Without evi-

dence to the contrary, we assume that formally announced changes to official

government policy are not mere litigation posturing,” and “[w]e will not require

1

To the extent that Jones, at one point or another, requested injunctive relief to remedy

other purported violations, his failure to brief those arguments on appeal constitutes waiver.

See Longoria v. Dretke, 507 F.3d 898, 901 (5th Cir. 2007) (“Although we liberally construe pro

se briefs, such litigants must still brief contentions in order to preserve them.”).

2

As Jones, despite protestations, admits, “Now that I’ve render it Invalid, They want

to CHANGE, WHY? When all damage has already been done. Now in the courthouse. Now

had “I NOT” render it invalid, It would still be a tool to harass and discriminate etc . . . .”

2

No. 09-40256

some physical or logical impossibility that the challenged policy will be reenacted

absent evidence that the voluntary cessation is a sham for continuing possibly

unlawful conduct.” Indeed, in Sossamon we relied in good faith on a director’s

affidavit, whereas here we have evidence of an actual change in the policy.

The district court also properly dismissed Jones’s claims for damages un-

der RLUIPA, which does not provide any cause of action for individual-capacity

claims. Id. at 329. Assuming arguendo that RLUIPA provides an action for offi-

cial-capacity damages, those claims are barred by sovereign immunity. Id..

And, to the extent that Jones did not waive on appeal his earlier request for pun-

itive damages, that bar applies to compensatory and punitive damages. See id.

at 331.

The same is true for Jones’s constitutional claims. “Section 1983 does not

provide a cause of action against states or state employees in their official capa-

cities for damages.” Id. at 336. As for personal-capacity damages, just as the

prisoner-plaintiff in Sossamon, Jones “has pointed to no cases that render the

defendants’ actions . . . under . . . the cell restriction policy . . . unreasonable in

light of clearly established federal law” to get around qualified immunity. Id.

Summary judgment on the remainder of Jones’s claims is also proper.3 In

each instance, he either relies on “conclusory allegations, improbable inferences,

and unsupported speculation” for support, see Forsyth v. Barr, 19 F.3d 1527,

1533 (5th Cir. 1994), or fails to brief the issue sufficiently, see, e.g., Longoria, 507

F.3d at 901. As to the former, to be sure, the movant has the initial burden of

demonstrating the absence of an issue of material fact, St. Paul Ins. Co. v. AFIA

3

Take, for example, Jones’s Eighth Amendment claim. Even had we reached that is-

sue, Jones could not recover compensatory damages, because he did not contend that he suf-

fered physical injuries. See, e.g., Siglar v. Hightower, 112 F.3d 191, 193-94 (5th Cir. 1997).

And his allegations certainly do not suggest a deprivation of “the minimal civilized measure

of life’s necessities.” Farmer v. Brennan, 511 U.S. 824, 834 (1994) (internal quotations omit-

ted).

3

No. 09-40256

Worldwide Ins. Co., 937 F.2d 274, 279-80 (5th Cir. 1991), but once he has done

so, the nonmoving party is not entitled to rest on bare assertions. And as to the

latter, our “responsibility to construe pro se filings liberally,” Sossamon, 560 F.3d

at 322 n.3, does not mean that we will invent, out of whole cloth, novel argu-

ments on behalf of a pro se plaintiff in the absence of meaningful, albeit imper-

fect, briefing.

The judgment is AFFIRMED. Jones’s motion to correct his brief is

GRANTED.

4