Petition for Writ of Certiorari — Michael Joseph DeMarco, Jr., Petitioner v. Lorie Davis, Director, Texas Department of Criminal Justice, Correctional Institutions Division, et al.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

FILED

No. 17-11230

January 28, 2019

Lyle W. Cayce

Clerk

MICHAEL JOSEPH DEMARCO, JR.,

Plaintiff-Appellant,

versus

LORIE DAVIS, Director,

Texas Department of Criminal Justice, Correctional Institutions Division;

JEREMY J. BYNUM, Officer; JOSEPH C. BOYLE, Disciplinary Captain,

Defendants—Appellees.

Appeal from the United States District Court

for the Northern District of Texas

Before SMITH, DUNCAN, and ENGELHARDT, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Michael DeMarco, Jr., an inmate at the James V. Allred Unit of the

Texas Department of Criminal Justice (“TDCJ”), brought suit under 28 U.S.C.

§ 1983 against Jeremy Bynum, an officer at the Allred Unit; Joseph Boyle, a

disciplinary captain; and William Stephens, the former director of the TDCJ.

Append t1

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No. 17-11230

The district court dismissed the complaint with prejudice under 28 U.S.C.

§ 1915A(b)(l) for failure to state a claim upon which relief may be granted. We

affirm in part and reverse in part and remand.

I.

Bynum allegedly confiscated certain personal property from DeMarco’s

cell. At a disciplinary proceeding, DeMarco was found guilty of threatening

Bynum and was placed in solitary confinement. DeMarco sued, claiming that

the seizure of his legal and religious materials had occurred without due pro­

cess of law, had deprived him of access to the courts, and had burdened his free

exercise of religion. He further alleged that Bynum had confiscated his prop­

erty and instituted the disciplinary action in retaliation for exercising First

Amendment rights. Moreover, DeMarco insisted that Stephens and Boyle

were deliberately indifferent to those constitutional violations.

Finally,

DeMarco claimed that Boyle had denied him due process at the disciplinary

hearing by tampering with evidence and prohibiting him from calling his own

witnesses. The district court severed DeMarco’s challenge to the validity of the

disciplinary hearing and dismissed the remainder of the complaint for failure

to state a claim. See id. § 1915A(b)(l).

II.

This court reviews dismissals under § 1915A(b)(l) de novo, using the

standard applied under Federal Rule of Civil Procedure 12(b)(6). Legate v. Liv­

ingston, 822 F.3d 207, 210 (5th Cir. 2016). “Under that standard, a complaint

will survive dismissal for failure to state a claim if it contains sufficient factual

matter, accepted as true, to state a claim to relief that is plausible on its face.”

Id. (internal quotation marks and citation omitted). A claim is facially plausi­

ble “when the plaintiff pleads factual content that allows the court to draw the

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No. 17-11230

reasonable inference that the defendant is liable for the misconduct alleged. ”i

“We do not accept as true conclusory allegations, unwarranted factual infer­

ences, or legal conclusions.”2

A.

DeMarco avers that he was denied due process at the disciplinary pro­

ceeding because Boyle tampered with the witness statements and prevented

him from calling witnesses. The district court severed those claims because

they were potentially cognizable under 28 U.S.C. § 2254.3 Because DeMarco

does not contest that decision on appeal, he has waived any challenge to it. See

United States v. Thibodeaux, 211 F.3d 910, 912 (5th Cir. 2000) (per curiam). .

He must therefore raise those claims in a habeas corpus petition, not under

§ 1983.

B.

DeMarco claims that his personal property was seized without due process.

Nevertheless, “a deprivation of a constitutionally protected property

interest caused by a state employee’s random, unauthorized conduct does not

give rise to a § 1983 procedural due process claim, unless the State fails to

provide an adequate postdeprivation remedy.” Allen v. Thomas, 388 F.3d 147,

149 (5th Cir. 2004) (quoting Zinermon v. Burch, 494 U.S. 113, 115 (1990)).

Conduct is not “random or unauthorized” if the state “delegated to [the defen­

dants] the power and authority to effect the very deprivation complained of.”

1 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550

U.S. 544, 556 (2007)).

2 Gentilello v. Rege, 627 F.3d 540, 544 (5th Cir. 2010) (citation omitted) (quoting

Plotkin v. IP Axess Inc., 407 F.3d 690, 696 (5th Cir. 2005)).

3 See Heck v. Humphrey, 512 U.S. 477, 481 (1994) (citing Preiser v. Rodriguez, 411

U.S. 475, 488 90 (1973)) (“[HJabeas corpus is the exclusive remedy for a state prisoner who

challenges the fact or duration of his confinement and seeks immediate or speedier release.”).

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No. 17-11230

Id. (quoting Burch, 494 U.S. at 138).

DeMarco has not alleged that the state delegated to Bynum the authority

to confiscate his personal property.

Instead, DeMarco contends that his

property was seized in violation of TDCJ policy. Additionally, Texas’s tort of

conversion provides an adequate post-deprivation remedy for prisoners claim­

ing loss of property without due process. Murphy v. Collins, 26 F.3d 541, 54344 (5th Cir. 1994). Accordingly, DeMarco’s due process claim is not cognizable

under § 1983.

C.

The district court correctly dismissed DeMarco’s claim that he was

denied access to the courts. Prisoners have “a constitutionally protected right

of access to the courts” that is rooted in the Petition Clause of the First Amend­

ment and the Due Process Clause of the Fourteenth Amendment. See Brewer

v. Wilkinson, 3 F.3d 816, 820—21 (5th Cir. 1993) (citations omitted). But that

right is not without limit. Rather, “it encompasses only ‘a reasonably adequate

opportunity to file nonfrivolous legal claims challenging [an inmate’s] convic­

tions or conditions of confinement.’”4 To prevail on such a claim, a prisoner

must demonstrate that he suffered “actualinjury” in that the prison “hindered

his efforts” to pursue a nonfrivolous action.5

A prisoner must therefore

describe the predicate claim with sufficient detail to show that it is “arguable”

and involves “more than hope.” Christopher v. Harbury, 536 U.S. 403, 416

(2002).

4 Johnson v. Rodriguez, 110 F.3d 299, 310-11 (5th Cir. 1997) (quoting Lewis u. Casey,

518 U.S. 343, 356 (1996)).

5 See Lewis, 518 U.S. at 349, 351 (holding that the actual-injury requirement “derives

ultimately from the doctrine of standing”); Ruiz v. United States, 160 F.3d 273, 275 (5th Cir.

1998) (per curiam) (finding that the inmate failed to show actual injury because his

underlying claims were frivolous).

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No. 17-11230

DeMarco maintains that the confiscation of his legal materials prevented

him from filing a timely petition for writ of certiorari. But he has not identified

any actionable claim that he would have raised. Consequently, he has failed

to establish the actual harm necessary to support his denial-of-access claim.6

D.

The district court properly dismissed DeMarco’s retaliation claim.

Under the First Amendment, a prison official may not harass or retaliate

against an inmate “for exercising the right of access to the courts, or for com­

plaining to a supervisor about a guard’s misconduct.” Woods v. Smith, 60 F.3d

1161, 1164 (5th Cir. 1995) (citations omitted). “To prevail on a claim of retali­

ation, a prisoner must establish (1) a specific constitutional right, (2) the defen­

dant’s intent to retaliate against the prisoner for his or her exercise of that

right, (3) a retaliatory adverse act, and (4) causation.”7 Causation, in turn,

requires a showing that “but for the retaliatory motive the complained of

incident . . . would not have occurred.” McDonald, 132 F.3d at 231 (quoting

Johnson, 110 F.3d at 310). That standard places a “significant burden” on an

inmate as the court must regard claims of retaliation “with skepticism.”

Woods, 60 F.3d at 1166 (citation omitted). Mere conclusional allegations are

insufficient to support a retaliation claim. Id. Instead, an inmate “must pro­

duce direct evidence of motivation” or “allege a chronology of events from which

retaliation may plausibly be inferred.” Id. (citations omitted).

DeMarco maintains that Bynum retaliated against him by confiscating

his personal property and filing a false disciplinary action.

In his brief,

6 The district court held that despite the seizure of his legal materials, DeMarco

suffered no harm because he was represented by counsel. We may nonetheless affirm on any

basis supported by the record. LLEH, Inc. v. Wichita Cty., 289 F.3d 358, 364 (5th Cir. 2002).

7 Morris v. Powell, 449 F.3d 682, 684 (5th Cir. 2006) (quoting McDonald v. Steward,

132 F.3d 225, 231 (5th Cir. 1998)).

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No. 17-11230

DeMarco states that the retaliation was motivated by the submission of an

earlier grievance on June 10, 2013. But in his answers to the district court’s

questionnaire, DeMarco maintained that he had filed the relevant grievance

on May 27, 2013. He also alleged that the retaliation occurred because he had

offered to serve as a witness against Bynum in 2012. This changing tale is

conclusional at best.

Because DeMarco has not demonstrated retaliatory

intent through direct evidence or a clear chronology of events, he has failed to

establish the second and fourth elements of his retaliation claim.

See

McDonald, 132 F.3d at 231.

E.

DeMarco posits that Bynum burdened the free exercise of religion by

confiscating his religious materials. To fall within the purview of the Free

Exercise Clause, a claimant must possess a sincere religious belief.8 An inmate

retains his right to the free exercise of religion, subject to reasonable restric­

tions stemming from legitimate penological concerns. See O’Lone v. Estate of

Shabazz, 482 U.S. 342, 349 (1987). In evaluating the reasonableness of a

prison policy, we consider (1) the existence of a “valid, rational connection”

between the state action and the “legitimate governmental interest put for­

ward to justify it;” (2) the availability of alternative means of exercising the

right; (3) the impact an accommodation will have on guards, other inmates,

and the allocation of prison resources; and (4) the absence of alternatives that

“fully accommodate!] the prisoner’s right[] at de minimis cost to valid

8 See Wisconsin v. Yoder, 406 U.S. 205, 216 (1972) (noting that “philosophical and

personal . . . belief does not rise to the demands of the Religion Clauses”); Soc’y of Separationists, Inc. v. Herman, 939 F.2d 1207, 1212 (5th Cir. 1991), on reh’g, 959 F.2d 1283 (5th

Cir. 1992) (citation omitted) (“[T]he Free Exercise query is whether this particular plaintiff

holds a sincere belief that the affirmation is religious.”); Ferguson u. Comm’r, 921 F.2d 588,

589 (5th Cir. 1991) (per curiam) (citations omitted) (“The protection of the free exercise clause

extends to all sincere religious beliefs.”).

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No. 17-11230

penological interests.”9

A plaintiff bears the burden of proving that a prison policy, as applied, is

not reasonably related to legitimate penological objectives.10 Moreover, prison

officials are entitled to “substantial deference” in the exercise of their profes­

sional judgment. See Overton, 539 U.S. at 132 (citations omitted). Neverthe­

less, the government “must do more ... than merely show ‘a formalistic logical

connection between [its policy] and a penological objective.”’ Prison Legal

News, 683 F.3d at 215 (quoting Beard v. Banks, 548 U.S. 521, 535 (2006)).

Though a plaintiff shoulders the ultimate burden of persuasion,11 the govern­

ment must identify “‘a reasonable relation,’ in light of the ‘importance of the

rights [here] at issue. ’”12

In dismissing DeMarco’s claim, the district court explained that he had

failed to name any religious belief or practice that was negatively impacted.

The court suggested that because DeMarco had not requested the return of his

religious materials, his professed faith was likely a sham.

We disagree.

Though DeMarco did not specify that he was a Christian, he averred that

9 Turner v. Safley, 482. U.S. 78, 89-91 (1987) (citations omitted). See also Davis v.

Davis, 826 F.3d 258, 265 (5th Cir. 2016).

10 See Prison Legal News v. Livingston, 683 F.3d 201, 215 (5th Cir. 2012); see also

Overton v. Bazzetta, 539 U.S. 126, 132 (2003) (citations omitted) (“The burden ... is not on

the State to prove the validity of prison regulations but on the prisoner to disprove it.”).

11 See Turner v. Cain, 647 F. App’x 357, 366-68 (5th Cir. 2016) (Wiener, J„

concurring).

12 Prison Legal News, 683 F.3d at 215 (quoting Beard, 548 U.S. at 535); see also

Mayfield v. Texas Dep’t Of Criminal Justice, 529 F.3d 599, 612 (5th Cir. 2008) (reversing the

district court’s grant of summary judgment in favor of the TDCJ because “none of the

penological interests provided by the TDCJ necessarily supported] limiting access to rune

literature in the prison library”); Thompson v. Solomon, No. 92-8240, 1993 WL 209926, at *2

(5th Cir. June 2, 1993) (per curiam) (concluding that the state’s “cursory response . . .

provide[d] an insufficient factual basis” to dismiss plaintiffs free-exercise claim); Rudolph v.

Locke, 594 F.2d 1076, 1077 (5th Cir. 1979) (per curiam) (holding that the state’s “bare

assertion” that its regulation was an appropriate means of maintaining security was “not

enough” to deny relief on plaintiffs First Amendment claims).

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No. 17-11230

Bynum had confiscated copies of the Bible and religious books by Max Lucado,

Charles Swindoll, and Joel Osteen. Moreover, DeMarco asserted that the tak­

ing of those books had placed a substantial burden on his practice of reading

religious literature. His decision to seek damages—rather than the return of

his books—does not indicate that his religious belief is disingenuous. Indeed,

his books were allegedly destroyed, leaving damages as his only recourse.

Hence, with the benefit of liberal construction, DeMarco’s pro se pleadings

estabhsh that the seizure of his books burdened a sincere religious practice.

See Woodfox v. Cain, 609 F.3d 774, 792 (5th Cir. 2010).

Furthermore, the defendants have not “put forward” any legitimate gov­

ernment interest justifying the alleged seizure of DeMarco’s religious materials. Turner, 482 U.S. at 89. Rather, as DeMarco alleges, Bynum merely

stated that “he could take whatever he wanted whenever he wanted.” The

district court therefore erred in dismissing DeMarco’s free exercise claim

against Bynum in his individual capacity.13 On remand, the court should

determine whether the alleged confiscation was reasonably related to a legiti­

mate penological objective.

Nevertheless, the district court properly dismissed DeMarco’s free exer­

cise claim against Boyle and Stephens. “[T]o state a cause of action under sec­

tion 1983, the plaintiff must identify defendants who were either personally

involved in the constitutional violation or whose acts are causally connected to

the constitutional violation alleged. ” 14 DeMarco does not aver that Boyle or

13 DeMarco’s claim against Bynum in his official capacity is barred by sovereign

immunity. See Kentucky u. Graham, 473 U.S. 159, 169 (1985) (citations omitted) (“[AJbsent

waiver by the State or valid congressional override, the Eleventh Amendment bars a damages

action against a State in federal court. This bar remains in effect when State officials are

sued for damages in their official capacity.”).

14 Woods v. Edwards, 51 F.3d 577, 583 (5th Cir. 1995) (per curiam) (citing Lozano v.

Smith, 718 F.2d 756, 768 (5th Cir. 1983)).

8

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No. 17-11230

Stephens personally confiscated his religious materials. Instead, he claims

that they caused the violation by failing to train their subordinates and by

ignoring previous complaints about Bynum. But DeMarco does not specify any

other examples of comparable violations. Nor does he explain how better train­

ing might have prevented the alleged violation. Such conclusional allegations

are insufficient to show that the alleged violation resulted from Boyle and Ste­

phens’ actions. DeMarco has thus failed to state a claim against them.

The judgment of dismissal is AFFIRMED in part and REVERSED in

part and REMANDED. We place no limitation on the matters that the district

court can address on remand, and we do not mean to indicate how the court

should rule on any issue.

9

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

WICHITA FALLS DIVISION

MICHAEL JOSEPH DEMARCO, JR.,

TDCJ No. 1564162,

Plaintiff,

v.

WILLIAM STEPHENS, et al,

Defendants.

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§

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Civil No. 7:14-CV-094-O

JUDGMENT

This action came on for consideration by the Court, and the issues having been duly

considered and a decision duly rendered,

It is ORDERED, ADJUDGED, and DECREED that Plaintiffs claims under federal law

are DISMISSED with prejudice pursuant to 28 U.S.C. § 1915A(b)(l) for failure to state a claim

on which relief may be granted.

It is further ORDERED, ADJUDGED, and DECREED that Plaintiffs state law claim

of conversion is DISMISSED without prejudice.

SIGNED this 29th day of September, 2017.

b

NBleed O’Connor

UNITED STATES DISTRICT JUDGE

Ap'pe-Aci i k

A- 2

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

WICHITA FALLS DIVISION

MICHAEL JOSEPH DEMARCO, JR.,

TDCJ No. 1564162,

Plaintiff,

v.

WILLIAM STEPHENS, et al,

Defendants.

§

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§

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§

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§

Civil No. 7:14-CV-094-O

ORDER DISMISSING CASE

This is a civil rights action brought pursuant to 42 U.S.C. § 1983 by an inmate confined in

the James V. Allred Unit of the Texas Department of Criminal Justice (“TDCJ”) in Iowa Park,

Texas. Defendants are the Director of the TDCJ Correctional Institutions Division and two

correctional officers at the Allred Unit.

Background

Plaintiff claims that Defendant Jeremy Bynum, an officer at the Allred Unit, unlawfully

seized his legal and religious materials and filed a false disciplinary action against him. See

Complaint, ECF No. 3 at 4. Plaintiff states that Bynum’s misconduct was known by prison

administrators and that they were grossly negligent in allowing such acts. Id. at 5. Plaintiff also

brought a challenge to the disciplinary action in this case. Id. That challenge was severed from this

case and Plaintiff proceeded with those claims in a habeas action. See Order Severing Claims, ECF

No. 13; DeMarco v. Davis, No. 7:15-CV-047-O (N.D. Tex. 2016) (petition dismissed). But Plaintiff

claims that the punishments imposed in the disciplinary action were imposed for the purpose of

retaliation because of a grievance he had previously filed. See Complaint, ECF No. 3 at 5. That

claim remains pending in this case. Plaintiff seeks $450,000.00 in monetary damages. Id. at 4.

In order to flesh out the facts underlying Plaintiffs complaint, a questionnaire was issue to

him by the Court. See Eason v. Thaler, 14 F.3d 8 (5th Cir. 1994) (requiring further development of

a pro se litigant’s insufficient factual allegations before dismissal is proper); Watson v. Ault, 525

F.2d 886, 892-93 (5th Cir. 1976) (affirming use of questionnaire as useful and proper means for a

court to develop the factual basis of a pro se plaintiff s complaint). Plaintiff filed his answers in

response to the Court’s questions. See ECF No. 15. Upon review of the complaint and of Plaintiff s

answers to questions, the Court finds and orders as follows:

Retaliation

In his complaint, Plaintiff alleges that the punishments imposed in the prison disciplinary

action were imposed in retaliation for a grievance he had previously filed. See Complaint, ECF No.

3 at 5. But in his answers to questions, Plaintiff states that the retaliation came as a result of offering

to serve as a witness for an inmate who was allegedly assaulted by Defendant Bynum a year and a

half earlier. See Plaintiffs Answer to the Court’s Question No. 17, ECF No. 15 at 17. Plaintiff

claims that there is a pattern of retaliation in the Texas prison system against inmates who file

grievances. Id. at 19.

State officials may not retaliate against an inmate for the exercise of a constitutionally

protected right. Woods v. Smith, 60 F.3d 1161,1165 (5th Cir. 1995); Gibbs v. King, 779 F.2d 1040,

1046 (5th Cir. 1986). In order to show retaliation an inmate “must establish (1) a specific

constitutional right, (2) the defendant’s intent to retaliate against the prisoner for his or her exercise

of that right, (3) a retaliatory adverse act, and (4) causation.” McDonald v. Steward, 132 F.3d 225,

-2-

231 (5th Cir. 1998).

Causation requires a showing that “but for the retaliatory motive the

complained of incident... would not have occurred.” Johnson v. Rodriguez, 110 F.3d 299,310 (5th

Cir. 1997) (quoting Woods, 60 F.3d at 1166). This places a significant burden on the inmate. Mere

conclusory allegations are insufficient to state a claim. Woods, 60 F.3d at 1166, Richardson v.

McDonnell, 841 F.2d 120, 122-23 (5th Cir. 1988). The inmate must produce direct evidence of

motivation or “allege a chronology of events from which retaliation may plausibly be inferred.”

Woods, 60 F.3d at 1166 (quoting Cain v. Lane, 857 F.2d 1139, 1143 n.6 (7th Cir. 1988)). Trial

courts are required to carefully scrutinize civil rights actions based on claims of retaliation as those

claims “must [] be regarded with skepticism.” Id. (quoting Adams v. Rice, 40 F.3d 72, 74 (4th Cir.

1994)). A plaintiff s bare assertion of retaliation, without any supporting facts, is insufficient to state

a claim under 42 U.S.C. § 1983. See Woods v. Edwards, 51 F.3d 577, 580 (5th Cir. 1995) (prisoner

must show more than a “personal belief’ to establish retaliation).

Although he was afforded ample opportunity to state the facts underlying his complaint,

Plaintiff has failed to allege facts that could show that the alleged retaliation by Bynum resulted from

his exercise of any constitutional right or that, but for a retaliatory motive, the punishments imposed

as a result of the disciplinary action would not have been assessed. Plaintiff s allegations of

retaliation are conclusory in nature and, as such, fail to state a claim under the Civil Rights Act.

Conclusory allegations and legal conclusions masquerading as factual allegations are insufficient to

state a cognizable claim under the Civil Rights Act when a plaintiff is directed by a court to state the

factual basis of a claim. See Fernandez-Montes v. Allied Pilots Ass n, 987 F.2d 278, 284 (5th Cir.

1993) (holding that “conclusory allegations or legal conclusions masquerading as factual conclusions

will not suffice to prevent a motion to dismiss.”); Van Cleave v. United States, 854 F.2d 82, 84 (5th

-3-

Cir. 1988) (requiring specific facts and noting that conclusory allegations are insufficient to maintain

a claim under § 1983). Plaintiffs subjective belief that Defendants had unlawful retaliatory motives

is insufficient to maintain this claim.

Access to the Courts

Plaintiff alleges that the taking of his legal materials by Defendant Bynum result in a denial

of access to the courts. See Plaintiffs Answer to the Court’s Question No. 9, ECF No. 15 at 9.

Prisoners have a constitutional right of adequate and meaningful access to the courts. E.g.,

Lewis v. Casey, 518 U.S. 343 (1996); Bounds v. Smith, 430 U.S. 817, 821-23 (1977); McDonald v.

Steward, 132 F.3d 225, 230 (5th Cir. 1998). However, their right of access is not unlimited. “[I]t

encompasses only ‘a reasonably adequate opportunity to file nonfrivolous legal claims challenging

their convictions or conditions of confinement.

Johnson v. Rodriguez, 110 F.3d 299, 310-11 (5th

Cir. 1997) (quoting Lewis, 518 U.S. at 356). In order to establish a claim for denial of access to the

courts, a prisoner must demonstrate that he suffered some “actual injury.

See Lewis, 518 U.S. at

351-52 (holding that actual injury is a constitutional prerequisite to maintaining a claim involving

denial of access to the courts). This, in turn, requires proof that the denial of access “hindered [the

inmate’s] efforts to pursue a legal claim.” Lewis, 518 U.S. at 351; see also McDonald, 132 F.3d at

231 (noting that, in order to prevail on a claim of denial of access to the courts, an inmate must

demonstrate that his position as a litigant was prejudiced).

Access to legal materials is one way of satisfying the right of access to the courts. Bounds,

430 U.S. at 830. However, there is no right to access legal materials independent of the right to

access the courts. Thus, a complaint alleging the deprivation of legal materials, without more, is

insufficient to state a claim of denial of access to the courts. See Lewis, 518 U.S. at 351-52.

-4-

Plaintiff claims that he was denied access to the courts with regard to the appeals in his four

criminal convictions. See Plaintiffs Answers to the Court’s Questions No. 10 & 11. But Plaintiff

states that he was represented by counsel in the appeals. Id. at 12. Representation by counsel is an

alternative to an inmate’s access to legal materials that satisfies the constitutional right of access to

the courts. Bounds, 430 U.S. at 830-31. The fact that Plaintiff was without his legal materials

during the appeals, without more, does not establish a denial of access to the courts.

Moreover, Plaintiff has not stated facts that could demonstrate prejudice in any of his appeals

that resulted from the lack of legal materials. See Plaintiffs Answers to the Court’s Questions No.

13-16. Plaintiff fails to identify any instances in which he was unable to file pleadings or comply

with court orders. Id. Because Plaintiff has not alleged any injury due to the loss of his legal

materials, he has not alleged a violation of Bounds..

.

The Court has the power to pierce the veil of a pro se plaintiff s allegations and dismiss those

claims whose factual contentions are clearly baseless. Maciasv. RaulA. (Unknown), BadgeNo. 153,

23 F 3d 94, 97 (5th Cir. 1994). Although pro se complaints are to be construed liberally, the Court

is bound by the allegations of the complaint and is not free to speculate that a plaintiff might be able

to state a claim if given yet another opportunity to add more facts. Id. Plaintiff s demal-of-access

claim is without merit.

Free Exercise of Religion

Plaintiff alleges that Defendant Bynum denied him the right to the free exercise of his

religion when he confiscated Plaintiffs religious materials. See Plaintiff s Answer to the Court’s

Question No. 3, ECF No. 15 at 3.

-5-

Although incarcerated, an inmate retains his First Amendment right to the free exercise of

religion, subject to reasonable restrictions and limitations necessitated by penological goals. E.g.,

Turner v. Safley, 482 U.S. 78, 89-91 (1987); O’Lone v. Estate ofShabazz, 482 U.S. 342, 349-50

(1987); Powell v. Estelle, 959 F.2d 22,25-26 (5th Cir. 1992). To fall within the purview of the free

exercise clause of the First Amendment, a religious claim must satisfy the following two criteria:

“First, the claimant’s proffered belief must be sincerely held; the First Amendment does not extend

to ‘ so-called religions which... are obviously shams and absurdities and whose members are patently

devoid of religious sincerity.’” Callahan

Woods, 658 F.2d 679, 683 (9th Cir. 1981) (quoting

Theriault v. Carlson, 495 F.2d 390, 395 (5th Cir. 1974)). Second, “the claim must be rooted in

religious belief, not in ‘purely secular’ philosophical concerns.” Id. (citing Wisconsin v. Yoder, 406

U.S. 205, 215-16 (1972)). Thus, only practices associated with sincerely held religious beliefs

require accommodation by prison officials. See e.g., U.S. v. Daly, 756 F.2d 1076, 1081 (5th Cir.

1985) (citing United States v. Ballard, 322 U.S. 78, 86-88 (1944) and United States v. Seeger, 380

U.S. 163,184(1965));Malikv. Brown, 16 F.3d 330, 333 (9th Cir. 1994),supplemented, 65 F.3d 148

(9th Cir. 1995); Mosier v. Maynard, 937 F.2d 1521, 1526 (10th Cir. 1991). Unfortunately, the

realities of prison life dictate that even religious practices associated with sincerely held religious

beliefs may be limited “in order to achieve legitimate correctional goals or to maintain prison

security.” O’Lone, 482 U.S. at 348.

Plaintiffs sole free exercise claim is that his religious materials were taken by Defendant

Bynum. Although Plaintiff claims that this act denied him the right to freely exercise his religion,

he does not identify any sincerely held religious belief or any practice thereof that was impacted.

Plaintiff does not state the nature of his religion or of his religious practices and he has not stated

-6-

facts to show that this claim is actually rooted in religious belief. The gravamen of Plaintiffs

complaint is that his property was unlawfully confiscated. Notably, Plaintiff did not ask for the

return of his religious materials in either of his grievances. See Plaintiff s Grievances, ECF No. 3

at 11-14. He sought only to overturn prison disciplinary convictions. Id. Plaintiff has failed to state

a free exercise claim. And he has failed to make any claim that the taking of his religious materials

substantially burdened any religious exercise. See Religious Land Use and Institutionalized Persons

Act, 42 U.S.C. § 2000cc et seq. at § 2000cc-l(a) (providing in part that “[n]o government shall

impose a substantial burden on the religious exercise of a person ... confined to an institution ....);

Adkins v. Kaspar, 393 F.3d 559, 569-70 (5th Cir. 2004) (holding that “... a government action or

regulation creates a ‘substantial burden’ on a religious exercise if it truly pressures the adherent to

significantly modify his religious behavior and significantly violate his religious beliefs. ).

Takine of Property

Plaintiff claims that his personal property was unlawfully seized by Defendant Bynum. The

United States Supreme Court has held that the “unauthorized, intentional deprivation of property”

does not constitute a civil rights violation if there exists a meaningful post-deprivation remedy.

Hudson v. Palmer, 468 U.S. 517, 533 (1984); accordNickens v. Melton, 38 F.3d 183, 184-85 (5th

Cir. 1994); see also Holloway v. Walker, 790 F.2d 1170, 1174 (5th Cir. 1986) (finding no breach of

federally guaranteed constitutional rights, even where a high level state employee intentionally

engages in tortious conduct, as long as the state system as a whole provides due process of law).

Under the circumstances of the instant case, Plaintiff has the state common-law action of conversion

available to remedy his alleged deprivation of property. Murphy v. Collins, 26 F.3d 541,543-44 (5th

Cir. 1994); Myers v. Adams, 728 S.W.2d 771 (Tex. 1987). Conversion occurs when there is an

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unauthorized and unlawful exercise of dominion and control over the property of another which is

inconsistent with the rights of the owner. Armstrong v. Benavides, 180 S.W.3d359,363 (Tex. App.

- Dallas 2005, no writ); Beam v. Voss, 568 S.W.2d 413, 420-21 (Tex. Civ. App. - San Antonio

1978, no writ). If Defendant Bynum exercised unauthorized and unlawful control over Plaintiff s

personal property, Plaintiff has a factual basis to allege a cause of action in conversion. Such a

common-law action in state court would be sufficient to meet constitutional due process

requirements. Groves v. Cox, 559 F. Supp. 772, 773 (E.D. Va. 1983).

Conclusion

Plaintiff was given the opportunity to expound on the factual allegations of his complaint by

way of questionnaire. But he failed to allege any facts that could indicate his constitutional or federal

statutory rights were violated. As stated earlier, conclusory allegations and legal conclusions

masquerading as factual allegations are insufficient to state a cognizable claim.

For the foregoing reasons, Plaintiffs claims under federal law are DISMISSED with

prejudice pursuant to 28 U.S.C. § 1915A(b)(l) for failure to state a claim on which relief may be

granted.

Plaintiffs state law claim of conversion is DISMISSED without prejudice.

SO ORDERED this 29th day of September, 2017.

^7JUM

mmnmm

Ngleed O’ Connor

UNITED STATES DISTRICT JUDGE

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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

WICHITA FALLS DIVISION

MICHAEL JOSEPH DEMARCO, JR.,

TDCJNo. 1564162,

Petitioner,

v.

LORIE DAVIS, Director,

Texas Department of Criminal Justice,

Correctional Institutions Division,

Respondent.

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Civil No. 7:15-CV-I47-0

JUDGMENT

This action came on for consideration by the Court, and the issues having been duly

considered and a decision duly rendered,

It is ORDERED, ADJUDGED, and DECREED that the petition for writ of habeas corpus

is DENIED.

It is further ORDERED, ADJUDGED, and DECREED that Petitioner’s civil rights claims

are DISMISSED without prejudice.

SIGNED this 14th day of September, 2016.

eed O’Connor

UNITED STATES DISTRICT JUDGE

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

WICHITA FALLS DIVISION

MICHAEL JOSEPH DEMARCO, JR.,

TDCJ No. 1564162,

Petitioner,

v.

LORIE DAVIS, Director,

Texas Department of Criminal Justice,

Correctional Institutions Division,

Respondent.

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Civil No. 7:15-CV-147-0

ORDER OF THE COURT ON

CERTIFICATE AS TO APPEALABILITY

This is a habeas corpus case in which the detention complained of arises out of process issued

by a state court. Considering the record in this case and pursuant to Federal Rule of Appellate

Procedure 22(b), a Certificate of Appealability is hereby DENIED.

REASONS FOR DENIAL: For the reasons stated in the Court’s Order Denying Habeas Relief,

which is hereby adopted and incorporated by reference, the Petitioner has failed to demonstrate that

jurists of reason would find it debatable whether the petition states a valid claim of the denial of a

constitutional right. See Slack v. McDaniel, 529 U.S. 473 (2000).

SO ORDERED this 14th day of September, 2016.

1

eed O’Connor

UNITED STATES DISTRICT JUDGE

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

WICHITA FALLS DIVISION

MICHAEL JOSEPH DEMARCO, JR.,

TDCJ No. 1564162,

Petitioner,

v.

LORIE DAVIS, Director,

Texas Department of Criminal Justice,

Correctional Institutions Division,

Respondent.

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Civil No. 7:15-CV-147-0

ORDER DENYING HABEAS RELIEF

Petitioner Michael Joseph DeMarco, Jr., an inmate confined in the James V. Allred Unit of

the Texas Department of Criminal Justice in Iowa Park, Texas, brings this action pursuant to 28

U.S.C. § 2254. DeMarco challenges the validity of disciplinary action no. 20130360380 which was

brought against him at the Allred Unit. DeMarco was found guilty of threatening an officer. See

Amended Petition, ECF No. 8 at 5. The disciplinary case resulted in “solitary, [and] more restrictive

custody from G2-S3 to G4-L1.” Id.

In support of his petition, DeMarco presents the following grounds for relief:

1.

denial of the right to call witnesses and tampering with witness statements by prison

officials;

2.

failure to inventory and tag legal and religious materials and destruction of those

materials;

3.

failure of prison officials to attempt an informal resolution; and,

4.

unfair and biased disciplinary system.

Id. at 6-7.

DeMarco has failed to state a colorable claim for habeas corpus relief.

He has no

constitutionally protected interest in his prison custodial classification or in his good-time earning

status. See Luken v. Scott, 71 F.3d 192, 193 (5th Cir. 1995) (recognizing that “[t]he loss of the

opportunity to earn good-time credits, which might lead to earlier parole, is a collateral consequence

of [an inmate’s] custodial status” and, thus, does not create a constitutionally protected liberty

interest). Therefore, the reduction in his custodial classification level does not warrant due process

protection.

With regard to placement in solitary confinement as a result of the finding of guilt, DeMarco

is not entitled to habeas relief. Inmates generally do not have protected liberty interests in their

confinement status. See Sandin v. Conner, 515 U.S. 472, 484 (1995) (holding that a prisoner’s

liberty interest is “generally limited to freedom from restraint which ... imposes atypical and

significant hardship on the inmate in relation to the ordinary incidents of prison life.”).

Constitutional concerns could arise where solitary confinement rises to the level of an atypical and

significant hardship. However, Petitioner makes no such claim in this case.

DeMarco concedes that he is not eligible for mandatory supervised release and that he did

not lose any previously earned good time credits as a result of the disciplinary action. See Amended

Petition, ECF No. 8 at 5. Therefore, he had no constitutionally protected liberty interest at stake.

See Madison v. Parker, 104 F.3d 765, 769 (5th Cir. 1997) (holding that the state may create a

constitutionally protected liberty interest requiring a higher level of due process where good-time

credits are forfeited in a disciplinary action against an inmate who is eligible for mandatory

supervised release). Absent such a liberty interest, due process does not attach to a prison

disciplinary proceeding.

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Petitioner claims that his legal and religious materials were unlawfully destroyed as a result

of the disciplinary action. Such claims may be pursued in a civil rights action. But they do not

constitute a cognizable ground for habeas relief. This case was severed from Petitioner’s previouslyfiled civil rights action. See Demarco v. Stephens, 7:15-CV-094-O (N.D. Tex.). Petitioner’s civil

rights claims remain pending in that case.

For the foregoing reasons, the petition for writ of habeas corpus is DENIED. Petitioner’s

civil rights claims are DISMISSED without prejudice to his currently pending civil rights action.

SO ORDERED this 14th day of September, 2016.

UiUJULA

eed O’Connor

)

UNITED STATES DISTRICT JUDGE

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