Petition for Writ of Certiorari — Benjamin Franklin, Petitioner v. Glenna S. Blair

Case: 19-10453

Document: 00515398959

Page: 1

Date Filed: 04/29/2020

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 19-10453

BENJAMIN FRANKLIN,

Plaintiff - Appellant

v.

GLENNA S. BLAIR,

Defendant - Appellee

Appeal from the United States District Court

for the Northern District of Texas

ON PETITION FOR REHEARING

Before DENNIS, ELROD, and DUNCAN, Circuit Judges.

PER CURIAM:

IT IS ORDERED that the petition for rehearing is DENIED.

ENTERED FOR THE COURT:

/s/ James L. Dennis

UNITED STATES CIRCUIT JUDGE

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KAREN MITCHELL

CLERK, U.S. DISTRICT COURT

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

No. 19-10453

FILED

March 17, 2020

Lyle W. Cayce

Clerk

BENJAMIN FRANKLIN,

Plaintiff-Appellant

v.

GLENNA S. BLAIR,

Defendant-Appellee

Appeal from the United States District Court

for the Northern District of Texas

USDCNo. 7:15-CV-164

Before DENNIS, ELROD, and DUNCAN, Circuit Judges.

PER CURIAM:*

Benjamin Franklin, Texas prisoner # 01561085, filed a 42 U.S.C. § 1983

complaint against Glenna S. Blair, a prison official in the James V. Allred Unit

of the Texas Department of Criminal Justice, alleging that she deprived him

of a DVD that he ordered from a Christian bookstore, violating his due process

rights, his right to exercise his religion, and his rights under the Religious

Land Use and Institutionalized Persons Act (RLUIPA). The district court

dismissed one claim in part without prejudice, dismissed his remaining claims

* Pursuant to 5TH ClR. 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

ClR. R. 47.5.4.

4PPENt>i)C. C

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with prejudice as frivolous pursuant to 28 U.S.C. § 1915(g), and certified that

an appeal would not be taken in good faith. Franklin now requests leave to

proceed in forma pauperis (IFP) on appeal.

“An appeal may not be taken [IFP] if the trial court certifies in writing

that it is not taken in good faith.”

§ 1915(a)(3).

Franklin’s IFP motion is

construed as a challenge to the district court’s certification decision. See Baugh

v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).

In determining whether a

nonfrivolous issue exists, our inquiry “is limited to whether the appeal involves

legal points arguable on their merits (and therefore not frivolous).” Howard v.

King, 707 F.2d 215, 220 (5th Cir. 1983) (internal quotation marks and citations

omitted). If we uphold the district court’s certification, Franklin must pay the

filing fee, or the appeal will be dismissed for want of prosecution. See Baugh,

117 F. 3d at 202. Alternatively, “where the merits are so intertwined with the

certification decision as to constitute the same issue,” we may deny the IFP

motion and dismiss the appeal sua sponte if it is frivolous. Id. at 202 & n.24;

see 5TH CIR. R. 42.2.

Franklin argues that the district court abused its discretion when it

denied his motion to amend his complaint. The court instructed Franklin that

he could file a motion to amend if he included a copy of the proposed amended

complaint on the proper form. However, Franklin failed to do so. Over a year

later, the district court ordered him to answer a questionnaire concerning his

claims. By requesting a more definite statement through a questionnaire, the

district court gave Franklin an opportunity to amend his complaint. See Eason

v. Thaler, 14 F.3d 8, 9-10 (5th Cir. 1994). Therefore, Franklin has not shown

that the district court abused its discretion when it denied his motion to

amend. See id.

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No. 19-10453

The district court did not err in holding that Franklin could not raise a

claim concerning the deprivation of property in a § 1983 action because he has

an adequate postdeprivation remedy of a tort action for conversion under Texas

state law. See Cathey v. Guenther, 47 F.3d 162, 164 (5th Cir. 1995). Further,

Franklin has not shown that the deprivation of the DVD prevented him from

engaging in religious activities or from attending religious services. See Turner

v. Safley, 482 U.S. 78, 89 (1987); Baranowski v. Hart, 486 F.3d 112, 120-22

(5th Cir. 2007). In addition, Franklin may not recover damages from Blair in

her individual or official capacity under the RLUIPA. See Opulent Life Church

v. City of Holly Springs, Miss., 697 F.3d 279, 289-90 (5th Cir. 2012). The

district court correctly found that although the statute authorizes prospective

injunctive relief, Franklin did not seek such relief, and his claims were

conclusional. See Gentilello v. Rege, 627 F.3d 540, 544 (5th Cir. 2010). Finally,

to the extent that Franklin is raising new claims for the first time on appeal,

this court will not consider new claims or new evidence presented for the first

time on appeal. See Burge v. St. Tammany Parish, 336 F.3d 363, 372 (5th Cir.

2003); Leverette v. Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir. 1999).

Franklin has not shown that he will raise a nonfrivolous issue on appeal,

and his appeal is frivolous.

See Howard, 707 F.2d at 220.

Accordingly,

Franklin’s IFP motion is denied and the appeal is dismissed as frivolous. See

Baugh, 117 F.3d at 202 n.24; Howard, 707 F.2d at 220; 5TH ClR. R. 42.2. The

dismissal of this appeal as frivolous and the district court’s dismissal of

Franklin’s § 1983 complaint in part as frivolous count as two strikes under 28

U.S.C. § 1915(g). See Coleman v. Tollefson, 135 S. Ct. 1759, 1761-64 (2015).

Franklin is warned that once he accumulates three strikes, he may not proceed

IFP in any civil action or appeal filed while he is incarcerated or detained in

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No. 19-10453

any facility unless he is under imminent danger of serious physical injury. See

§ 1915(g).

IFP MOTION DENIED; APPEAL DISMISSED; SANCTION WARNING

ISSUED.

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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

WICHITA FALLS DIVISION

BENJAMIN FRANKLIN,

TDCJ No. 1561085,

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Plaintiff,

v.

GLENNA S. BLAIR,

Defendant.

Civil Action No. 7:15-cv-164-0

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 Plaintiffs conversion claim is

DISMISSED without prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) as frivolous.

Plaintiffs remaining civil rights claims are DISMISSED with prejudice pursuant to 28

U.S.C. § 1915(e)(2)(B)(i) as frivolous.

SIGNED this 27th day of March, 2019.

£ed 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

BENJAMIN FRANKLIN,

TDCJ No. 1561085,

Plaintiff,

v.

GLENNA S. BLAIR,

Defendant.

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§

§

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§

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Civil Action No. 7:15-cv-164-0

ORDER DISMISSING CASE

Background

This is a civil rights action filed pursuant to 42 U.S.C. § 1983 by an inmate who, at the time

of filing, was confined in the James V. Allred Unit of the Texas Department of Criminal Justice

(“TDCJ”) in Iowa Park, Texas. Plaintiff states that he ordered a DVD from Christian Book

Distributors. See Complaint, ECF No. 1 at 4. When the DVD arrived at the Allred Unit, Defendant

Blair determined that it was contraband and, as such, Plaintiff was not permitted to have the DVD.

Id. Plaintiff claims that, rather than return the DVD to the distributor as he requested, the DVD was

stolen. Id. He claims to have written the distributor who replied that they did not received the DVD.

Id. In addition to his claim of stolen property, Plaintiff claims that Blair’s unlawful interference with

his religious DVD violated his rights to freedom of speech and due process, and also violated his

rights under the Religious Land Use and Institutionalized Persons Act (“RLUIPA”). Id. at 8.

Plaintiff seeks $10,000.00 in compensatory damages, $10,000.00 in punitive damages, and a

declaration that the act and omissions of Defendant Blair violated his rights. Id. at 4.

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Legal Standards

A district court may summarily dismiss claims filed by a plaintiff proceeding in forma

pauperis if it concludes that the claims are frivolous or malicious, fail to state a claim on which relief

may be granted, or seek monetary relief against a defendant who is immune from such relief. 28

U.S.C. § 1915(e)(2)(B). To state a claim upon which relief may be granted, a plaintiff must plead

“enough facts to state a claim to relief that is plausible on its face,” Bell Atlantic Corp. v. Twombly,

550 U.S. 544, 570 (2007), and he must plead those facts with enough specificity “to raise a right to

relief above the speculative level,” id. at 555. “A claim has facial plausibility when the plaintiff

pleads factual content that allows the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “The plausibility

standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that

a defendant has acted unlawfully.” Id. “A claim for relief is implausible on its face when ‘the

well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct.’”

HaroldH. Huggins Realty, Inc. v. FNC, Inc., 634 F.3d 787, 796 (5th Cir. 2011) (quotingIqbal, 556

U.S. at 679).

While, under Federal Rule of Civil Procedure 8(a)(2), a complaint need not contain detailed

factual allegations, a plaintiff must allege more than labels and conclusions, and while the Court

must accept all of the plaintiffs factual allegations as true, it is “‘not bound to accept as true a legal

conclusion couched as a factual allegation.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S.

at 555). A threadbare or formulaic recitation of the elements of a cause of action, supported by mere

conclusory statements, will not suffice. See id.

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Deprivation of Property

Plaintiff cannot prevail on his stolen property claim in federal court. 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

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.3d 359,363 (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 Blair exercised unauthorized and unlawful control over Plaintiffs

property, he 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).

First Amendment Claim

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.,

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Turner v. Safley, 482 U.S. 78, 89-91 (1987); O’Lone v. Estate of Shabazz, 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 v. 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, 16F.3d 330,333 (9th Cir. 1994), supplemented, 65 F.3d

148 (9th Cir. 1995); Mosierv. 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.

To establish a free exercise violation, an inmate must demonstrate that prison officials

prevented him from engaging in his religious conduct without any justification related to legitimate

penological concerns. Turner, 482 U.S. at 89. In reviewing such claims, the Court considers the

following factors: (1) whether there is a rational connection between the prison regulation and the

claimed penological goal; (2) whether alternative means of exercising the right in question remain

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open to inmates; (3) the impact of accommodation on guards, other inmates and prison resources in

general, and; (4) whether there is an absence of ready alternatives which would evince the

reasonableness of a regulation or the existence of reasonable alternatives which would evince the

unreasonableness of a regulation. Id. In evaluating prison rules that impinge on religious practices,

the Court must accord wide deference to prison officials’ decisions in light of the need to preserve

internal order and security unless there is substantial evidence to indicate that prison administrators

have exaggerated their response to such considerations. See id.

The record reflects that Plaintiff ordered two books from “Christianbook” Distributors,

Smith’s Bible Dictionary and Unwrapping the Pharaohs. See Plaintiffs Exhibits, ECF No. 4 at 9.

The book titled Unwrapping the Pharaohs contained a DVD.1 The TDCJ contraband notice to

Plaintiff stated that there was a “CD” in the book but that Plaintiff could have the book if the

contraband was removed. See Plaintiffs Exhibits, ECF No. 4 at 1. Plaintiff makes no claim that

he did not receive the two books. Thus, it appears that only the CD (DVD) was removed from

Plaintiffs order.

Plaintiff concedes that the DVD was taken from him because it is considered contraband

under TDCJ Board Policy 03.91, Correspondence Rules. See Plaintiffs Answer to the Court’s

Question No. 1, ECF No. 28 at 1. Other than Plaintiffs conclusory allegation that the taking of the

DVD as contraband violated his First Amendment rights, he has not set forth any argument to

'iSee https://www.christianbook.com/unwrapping-egyptian-archaeology-confirms-biblical

-timeline/john-ashton/9780890514689/pd/514682?product_redirect=l&Ntt=Hj514682&item_co

de=HJ&Ntk=keywords&event=ESRCG (last visited March 27, 2019).

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support such a claim. See Complaint, ECF No. 1 at 8. The religious books were given to Plaintiff

and he has not indicated how the taking of the DVD prevented him from engaging in his religious

activities. TDCJ ’ s policy of prohibiting inmates from possessing videotapes, DVDs, and CDs arises

out of security concerns that constitute legitimate government interests logically related to the policy.

See Jones v. Shabazz, 352 Fed. App’x 910, 915 (5th Cir. 2009) (finding that TDCJ was justified in

prohibiting inmate possession of videotapes because such tapes can be used to fashion weapons).

Plaintiffs bald allegation that the taking of the DVD as contraband violated his First Amendment

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

insufficient to maintain a claim under § 1983). The Court notes that Plaintiff does not claim that he

is prohibited from watching religious DVDs presented by the prison Chaplaincy program.

RLUIPA Claim

Plaintiff states that Defendant Blair’s actions in taking his DVD violated his rights under the

Religious Land Use and Institutionalized Persons Act. RLUIPA does not create a cause of action

against a defendant in her individual capacity. Sossamon v. Lone Star State of Texas, 560 F.3d 316,

331 (5th Cir. 2009), aff’d sub nom. Sossamon v. Texas, 563 U.S. 277 (2011). And any award of

monetary damages against Defendant Blair in her official capacity is barred by Texas’ sovereign

immunity. Id. While the Court could award prospective injunctive relief on a viable RLUIPA claim.

Plaintiff does not seek such relief. See Complaint, ECF No. 1 at 4 (seeking only monetary damages

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and declaratory relief). Moreover, as with his First Amendment claim, Plaintiffs RLUIPA claim

is conclusory in nature. See Complaint, ECF No. 1 at 8. Therefore, he cannot prevail on this claim.

Conclusion

A district court may dismiss a complaint filed in forma pauperis if it determines that the

action is frivolous. 28U.S.C. § 1915(e)(2)(B)(i). An action is frivolous if it lacks an arguable basis

in either law or fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Henson-El v. Rogers, 923 F.2d

51, 53 (5th Cir. 1991). A complaint is without an arguable basis in law if it is “based on an

indisputably meritless legal theory.” Neitzke, 490 U.S. at 327. The claims set forth in the case at bar

have no arguable basis under federal law.

For the foregoing reasons, Plaintiffs conversion claim is DISMISSED without prejudice

pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) as frivolous.

Plaintiffs remaining civil rights claims are DISMISSED with prejudice pursuant to 28

U.S.C. § 1915(e)(2)(B)(i) as frivolous.

SO ORDERED this 27th day of March, 2019.

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£ed O’Connor

UNITED STATES DISTRICT JUDGE

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