Robert A. TUFT, Plaintiff-Appellant v. The State of TEXAS; Brenda Chaney, former Warden of Jester 3 Unit; Kathren Gonzales, Lieutenant of Correctional Office at the Jester 3 Unit; Richard Leal, Assistant Warden of the Jester 3 Unit; Eddie Wilson; R. Waldon; Texas Department of Criminal Justice; J.P. Guyton; Kelli Ward; Mary Ward; Frank Hoke; Denise Jackson; Mary Becerra; Reginald Hall; Brenda Carver; Joe Hicks; Douglas Dretke, former Director of Texas Criminal Justice-Correctional Institutions Division (CID); John Doe; Jane Doe; Nathaniel Quarterman, Current Director of Correctional Institutions Division; Vernon Pittman, current Warden of Jester 3 Unit, Defendants-Appellees.
No. 10-20136
United States Court of Appeals, Fifth Circuit
Jan. 7, 2011
Summary Calendar.
Allan Kennedy Cook, Office of the Attorney General, Austin, TX, for Defendants-Appellees.
Before WIENER, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Proceeding pro se, Robert A. Tuft, Texas prisoner #1062966, appeals the summary-judgment dismissal of his civil rights action, filed under
In regard to the court‘s interlocutory rulings, Tuft contends the district court erred by ordering him to file a more definite statement of his claims. Such an order is reviewed for abuse of discretion. Old Time Enters., Inc. v. Int‘l Coffee Corp., 862 F.2d 1213, 1217 (5th Cir.1989). Although Tuft maintains most of the information the district court required by its order was already included in his pleadings, the order identified specific details Tuft failed to provide in his amended complaint. See Eason v. Thaler, 14 F.3d 8, 9 (5th Cir.1994).
Tuft further asserts the court erred by requiring in its order for a more definite statement that he provide information related to exhaustion of claims. See Jones v. Bock, 549 U.S. 199, 216, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007) (holding inmate not required to demonstrate exhaustion in complaint). Error, if any, was harmless because the court did not dismiss any of Tuft‘s claims as unexhausted until after defendants raised exhaustion in their answer as an affirmative defense and moved for summary judgment on that basis. See
Other interlocutory rulings Tuft challenges include denial of his motions for leave to amend his pleadings, under
Because Tuft requested leave to amend his pleadings after he already filed an amended complaint, his motions for leave to amend were subject to the court‘s discretion under
Tuft failed to brief any challenge to the denial of his motions for reconsideration of those rulings; accordingly, that issue is waived. See Hughes v. Johnson, 191 F.3d 607, 613 (5th Cir.1999).
Tuft also appeals the denial of leave to file a supplemental complaint to include claims arising after the date of his amended complaint. Such denial is reviewed for abuse of discretion; however, Tuft fails to explain why the district court‘s decision constituted such abuse. Burns v. Exxon Corp., 158 F.3d 336, 343 (5th Cir.1998).
Finally, Tuft maintains the district court abused its discretion in denying his
Tuft asserts the district court erred by failing to apply the continuing-tort doctrine to claims it ruled as time-barred under
Tuft also contends the court improperly dismissed, pursuant to
Tuft asserts the court erred in granting summary judgment on his claims regarding: a cross-sex strip search in 2005; the constitutionality of TDCJ policy governing strip searches; deliberate indifference to his serious medical needs; deliberate indifference to his health and safety; and violations of the ADA. A summary judgment is reviewed de novo. Cousin v. Small, 325 F.3d 627, 637 (5th Cir.2003). Summary judgment is proper “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“.
Under
Tuft acknowledged he did not exhaust his claim that prison officials violated the ADA by failing to provide handicapped recreational facilities. He also failed to exhaust his Eighth Amendment claim he was denied medical care when required to wait in line and then walk 50 yards for medication. See Johnson v. Johnson, 385 F.3d 503, 517 (5th Cir.2004). Although Tuft maintains he filed grievances (that were not returned to him) regarding his other claims, Tuft does not contend, and the record does not show, that he filed grievances for these claims. See id. at 517-23. Because he failed to “pursue the grievance remedy to conclusion“, Tuft failed to exhaust the claims. Wright v. Hollingsworth, 260 F.3d 357, 358 (5th Cir.2001). In addition, the court properly dismissed as unexhausted Tuft‘s claim regarding having to walk 50 yards to the medication line to the extent Tuft did not file administrative grievances for this claim until after filing this
Summary judgment was granted on the merits against Tuft‘s remaining ADA claims. Tuft failed to create a genuine issue of material fact with regard to them. In his initial brief, Tuft does not brief any challenge to the summary-judgment dismissal of these claims. Defendants contend, however, that the dismissal of Tuft‘s ADA claim regarding overcrowded showers was proper, and Tuft challenges the dismissal of that claim in his reply brief. Accordingly, although Tuft has waived any error with respect to the dismissal of other ADA claims on the merits, see Hughes, 191 F.3d at 613, we have discretion to consider Tuft‘s contentions regarding overcrowded showers, see United States v. Rodriguez, 602 F.3d 346, 360-61 (5th Cir.2010).
Despite complaining about such overcrowding, Tuft did not provide any summary-judgment evidence showing he and other prisoners with disabilities were treated differently from non-disabled prisoners. Therefore, even assuming Tuft is a “qualified individual with a disability” and the provision of showers is one of the “services, programs, or activities” of the TDCJ, and consistent with the district court‘s ruling, the crowded conditions of the showers did not constitute an ADA violation because there is no evidence he was discriminated against in his use of prison showers by reason of his disability. See Lightbourn v. County of El Paso, 118 F.3d 421, 428 (5th Cir.1997). In addition, Tuft failed to allege the overcrowding had a greater effect in impairing his access to showers than it did for non-disabled prisoners. See
Tuft appeals the summary-judgment against his cross-sex strip-search claim, in which a female guard allegedly participated, by maintaining: it violated his constitutional rights; and the prison policy governing such searches is unconstitutional. In Tuft‘s verified amended complaint, he alleged Lt. Gonzalez, a female corrections officer, participated in a strip search of Tuft and six other inmates on 26 February 2005. See Hart v. Hairston, 343 F.3d 762, 765 (5th Cir.2003) (“On summary judgment, factual allegations set forth in a verified complaint may be treated the same as when they are contained in an affidavit.“). According to Tuft, all seven inmates were ordered into a prison security office after being questioned about the source of cigarette smoke the previous day; Lt. Gonzalez was sitting at a desk “within arms reach” of the inmates; a
Defendants admitted Tuft and other prisoners were strip searched but submitted affidavits from Lts. Gonzalez and Peterson denying Lt. Gonzalez’ participation. In addition, defendants submitted a copy of the TDCJ policy governing such searches, Administrative Directive 03.22 (AD 03.22), which authorizes strip searches of male offenders by staff of the opposite sex, but “only in extraordinary circumstances and when approved by a supervisor“. The policy also states: “[i]f, under ordinary circumstances, a female officer is present in the vicinity of a male offender being strip-searched, the officer‘s duty is solely to provide security for the searching officer“; and “[t]he female officer shall not actively participate in the strip search” in such a case. Tuft maintained the policy was unconstitutional with respect to strip searches, insofar as it authorized Lt. Gonzalez to strip search him.
We have recognized a prisoner possesses a “constitutional right to bodily privacy” that “is minimal, at best“, Oliver v. Scott, 276 F.3d 736, 745 (5th Cir.2002); and “loses those rights that are necessarily sacrificed to legitimate penological needs“, Elliott v. Lynn, 38 F.3d 188, 190-91 (5th Cir.1994). Accordingly, we have held “searches or seizures conducted on prisoners must be reasonable under all the facts and circumstances in which they are performed“; however, “proving reasonableness is a light burden“, because “a prison administrator‘s decision and actions in the prison context are entitled to great deference from the courts“. Id. at 191 (internal citation and quotation marks omitted). Thus, “visual body cavity searches of prisoners can be constitutionally reasonable“, but judging the reasonableness of such a search “requires a balancing of the need for the particular search against the invasion of personal rights that the search entails” while “consider[ing] the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted“. Id. (quoting Bell v. Wolfish, 441 U.S. 520, 558-59, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979)).
Regarding prison regulations, we “give great deference to prison administrators’ judgments regarding jail security” and will uphold such regulation if it is “‘reasonably related to legitimate penological interests‘“. Oliver, 276 F.3d at 745 (quoting Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987)). Oliver upheld the constitutionality of AD 03.22, at issue, regarding cross-sex strip searches. Id. at 742-43. Although the regulation has been amended since our court reviewed its constitutionality in Oliver, the current policy also “narrowly cabins the scope” of such searches by permitting them only under “‘extraordinary circumstances‘“. Id. at 743 (quoting AD 03.22). A prisoner “might allege specific facts that would make lower-level officers liable for any unconstitutional application of the policy; the policy itself, however, is constitutional“. Id.
The court properly ruled that Tuft‘s claims for monetary damages against all individual defendants, in their official capacities as employees of the State
The district court found Tuft‘s claim, “that the sole purpose of the female officer‘s presence during the search was to sexually coerce and humiliate him into disclosing information“, was “conclusory and unsupported“. Tuft, however, supported his claim that Lt. Gonzalez participated in the search in order to sexually coerce him into telling the officers who was smoking, with competent summary-judgment evidence, including his verified pleadings and affidavits from two other prisoners. “Any credibility determinations [the district court] made between the officers’ and [Tuft‘s] version of events [was] inappropriate for summary judgment.” Tarver v. City of Edna, 410 F.3d 745, 753 (5th Cir.2005). “[C]onstru[ing] all facts and inferences in the light most favorable to the nonmoving party“, Dillon, 596 F.3d at 266 (internal citation and quotation marks omitted), we vacate the district court‘s partial dismissal of Tuft‘s claim against Lts. Gonzalez and Peterson in their individual capacities as premature, and remand the claim for further proceedings, see Moore v. Carwell, 168 F.3d 234, 236-37 (5th Cir.1999).
The district court recognized that Tuft seeks nominal and punitive damages, but found that analysis of defendants’ qualified immunity was unnecessary because Tuft disclaimed any request for “monetary” damages. The court cited Tuft‘s summary-judgment response, in which Tuft stated he did not seek “damages for mental or emotional injury“. Tuft contends the district court “erroneously and incorrectly” found he disclaimed “monetary damages“.
In that regard, Tuft stated in his summary-judgment response that he requested “nominal and punitive damages for this claim“. Liberally construing his statement regarding damages for mental or emotional injury, he apparently meant to disclaim only compensatory damages for the 2005 strip search, because compensatory damages, apart from physical injury, are unavailable under
Tuft contends additional discovery was needed before the district court ruled on the summary-judgment motion. The district court, however, granted Tuft‘s Rule 56(d) extension request, and Tuft has not provided any specific facts to suggest additional discovery time would have enabled him to locate information that would have successfully rebutted the summary-judgment motion regarding the dispositive issues in his action. See Washington v. Allstate Ins. Co., 901 F.2d 1281, 1285 (5th Cir.1990).
Tuft asserts the district court abused its discretion in denying his motion for a temporary-restraining order and preliminary injunction to require prison officials to allow Tuft to keep his medication on his person. Our court lacks jurisdiction over the denial of a temporary-restraining order, therefore, Tuft‘s appeal of that ruling is dismissed. See Faulder v. Johnson, 178 F.3d 741, 742 (5th Cir.1999).
A denial of a preliminary injunction is reviewed for abuse of discretion. SEC v. First Fin. Group of Tex., 645 F.2d 429, 433 (5th Cir.1981). “[A]ll interlocutory orders are reviewable on appeal from the final decree.” Gloria S.S. Co. v. Smith, 376 F.2d 46, 47 (1967); see also First Fin. Group, 645 F.2d at 433 (applying that principle to a preliminary injunction ruling). The appeal from the denial of the preliminary injunction became moot when the district court granted summary judgment against Tuft‘s claim for injunctive relief on the same basis, because an appeal is proper only from the final order addressing injunctive relief. See First Fin. Group, 645 F.2d at 433. Accordingly, we “dismiss the appeal ... from the order of preliminary injunction“. Id.
Moreover, as explained above, Tuft‘s claims for injunctive relief became moot when he was transferred from the Jester III Unit to another unit in 2009. See Herman v. Holiday, 238 F.3d 660, 665 (5th Cir.2001). In any event, the court did not abuse its discretion in denying the preliminary injunction because there was no substantial threat Tuft would suffer irreparable injury if the injunction was not granted. For the same reason, we dismiss his challenge to the denial of his motion for “reconsideration” of the denial of injunctive relief as moot.
DISMISSED in part; AFFIRMED in part; VACATED on the dismissal of Tuft‘s claims for nominal and punitive damages against Lts. Gonzalez and Peterson in their individual capacities; REMANDED for further proceedings.