     Case: 10-11061     Document: 00511803952         Page: 1     Date Filed: 03/28/2012




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

                                                                            FILED
                                                                          March 28, 2012
                                     No. 10-11061
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

KAMAL K. PATEL,

                                                  Plaintiff-Appellant

v.

JOSEPH HARO, Warden - FCI Big Spring; W. A. SHERROD, Associate Warden;
TREVINO TAPIA, Associate Warden; WAYNE “ATILLA THE HUFF”
HUFFMAN, Supervisor of Education/Industries; JOHN CLINTON, Captain;
SHERRY JACOBSON, Unit Manager; JIMMIE WRIGHT, Chaplain; M.
GOMEZ, Lieutenant; D. WHITE, Lieutenant; LINDA PATTON, Case Manager;
CATHY NEW, Case Manager; C. OLIVAS, Correctional Counselor;
COUNSELOR R. SPEAKER, Correctional Counselor; FNU FRESHOUR,
Mailroom Clerk; J. PEREZ, Correctional Counselor; ONE JOHN DOE, Identified
as Inmate Systems Manager; RUBEN HERNANDEZ, Lieutenant; R. RANGEL,
SIS Lieutenant; FNU DAVIS, Special Housing Lieutenant; FNU WOODS,
Special Housing Lieutenant; FNU ADAMS, Case Manager Coordinator; SEAN
MARLER, Regional Designator,

                                                  Defendants-Appellees


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 1:05-CV-225


Before KING, JOLLY, and GRAVES, Circuit Judges.
PER CURIAM:*

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
   Case: 10-11061   Document: 00511803952      Page: 2   Date Filed: 03/28/2012

                                  No. 10-11061

      Kamal K. Patel, federal prisoner # 56496-080, filed a verified pro se civil
rights complaint against the United States, the Bureau of Prisons (BOP), 28
current and former BOP officials, two former BOP inmates, and a contract
physician. He sought relief for constitutional violations under Bivens v. Six
Unknown Named Agents of the Federal Bureau of Narcotics, 402 U.S. 388 (1971),
as well as relief under various federal statutes. The district court dismissed
several claims and defendants pursuant 28 U.S.C. § 1915 on February 21, 2008,
and the court certified under Federal Rule of Civil Procedure 54(b) that there
was no just reason to delay entry of a final judgment. Patel did not appeal at
that time.
      He consented to have the magistrate judge (MJ) decide his remaining
claims, and the MJ granted the defendants’ summary judgment motion and
denied Patel’s motion for partial summary judgment. The MJ then dismissed
without prejudice the claims against defendant Joseph Haro for failure to effect
service and entered a final judgment in the case. Less than 28 days later, Patel
filed a document disputing the district court’s finding that Haro had not been
served, pursuant to Federal Rule of Civil Procedure 59(e). See Tex. A&M
Research Found. v. Magna Transp., Inc., 338 F.3d 394, 400 (5th Cir. 2003)
(construing a post-judgment motion filed within the then-applicable 10-day filing
period for Rule 59(e) motions as filed pursuant to Rule 59(e)). In addition, Patel
filed a motion for leave to appeal in forma pauperis (IFP), which the MJ granted.
The IFP motion served as a timely notice of appeal as to both the district court’s
grant of summary judgment and its dismissal of Patel’s claims against Haro.
      We ordered a limited remand for the district court to address Patel’s Rule
59(e) motion. The district court found that Haro was in fact served, and the
court vacated the order dismissing the claims against him. However, the district
court refused to enter a default judgment despite Haro’s failure to answer,
finding that the MJ’s grant of summary judgment in favor of the other
defendants inured to Haro’s benefit. Upon the entry of the order disposing of

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Patel’s Rule 59(e) motion, his IFP motion became effective as a notice of appeal.
See FED. R. APP. P. 4(a)(4)(B)(i); Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir.
1987).
      We affirm the denial of Patel’s request for appointment of counsel because
he has not shown extraordinary circumstances warranting such an appointment.
See Ulmer v. Chancellor, 691 F.2d 209, 212 (5th Cir. 1982). For the same reason,
we deny his request for appointment of counsel on appeal.
      Patel argues that the district court erred in dismissing his civil rights
claims, some of which were dismissed in the district court’s Rule 54(b) final
judgment. A timely notice of appeal is mandatory and jurisdictional in a civil
case. Bowles v. Russell, 551 U.S. 205, 214 (2007). Patel had 60 days from the
February 21, 2008 entry of the Rule 54(b) judgment to appeal. See 28 U.S.C.
§ 2107(b); FED. R. APP. P. 4(a)(1)(B); Brown v. Miss. Valley State Univ., 311 F.3d
328, 332 (5th Cir. 2002). Because he failed to do so, we lack jurisdiction to
review the dismissal of the claims and parties in the Rule 54(b) judgment. See
Bowles, 551 U.S. at 214; Frazier v. Bd. of Trs. of Nw. Miss. Reg’l Med. Ctr., 765
F.2d 1278, 1281-84 & n.10 (5th Cir. 1985). Accordingly, we dismiss for lack of
jurisdiction Patel’s arguments regarding the following issues and parties: claims
under the FTCA, claims against David Duke, claims against W.A. Sherrod,
Sherry Jacobson, Joseph Haro, Ronald Thompson, Harrell Watts, and John
Clinton in Count 1 of the complaint regarding alleged retaliatory threats, claims
in Count 12 of the complaint alleging retaliation in the form of denial of postage,
claims in Count 16 of the complaint regarding prison conditions, claims in
Counts 17 and 20 of the complaint alleging that the denial of medical care
constituted retaliation and deliberate indifference, claims in Count 21 of the
complaint alleging denial of his right of due process and access to the courts,
claims under the Privacy Act, and conspiracy claims, as well as all claims
against the United States, the BOP, Ronald Thompson, Harold Watts, and Dr.
Ricardo Partida.

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      Patel argues that the MJ erroneously construed his failure-to-protect claim
in Count 10(b) and (c) of the complaint. However, the district court rejected the
MJ’s recommendation to dismiss the claim altogether, and Patel has failed to
brief any challenge to the ultimate denial of the claim as to those defendants.
See McRae v. Hogan, 576 F.2d 615, 617 (5th Cir. 1978) (holding that this court
lacks jurisdiction to decide moot questions); Mapes v. Bishop, 541 F.3d 582, 584
(5th Cir. 2008) (holding that arguments not briefed are abandoned).
      We review the grant of summary judgment de novo, using the same
standard as that employed by the district court. Carnaby v. City of Houston, 636
F.3d 183, 187 (5th Cir. 2011). Summary judgment is appropriate “if the movant
shows that there is no genuine dispute as to any material fact and that the
movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a).1 We
construe “all facts and inferences in the light most favorable to the nonmoving
party.” Dillon v. Rogers, 596 F.3d 260, 266 (5th Cir. 2010) (internal citation and
quotation marks omitted).
      In the summary judgment context, a government official need only plead
qualified immunity, which then shifts the burden to the plaintiff. See Gates v.
Tex. Dep’t of Protective and Regulatory Servs., 537 F.3d 404, 419 (5th Cir. 2008).
The plaintiff must rebut the defense by establishing that the official’s allegedly
wrongful conduct violated clearly established law and that a genuine dispute
exists regarding the reasonableness of the official’s conduct. See id.; FED. R. CIV.
P. 56(a).
      Patel’s challenge to the denial of a continuance for further discovery fails
because he has not provided any specific facts that suggest additional time for
discovery would have enabled him to locate information that would have
successfully rebutted the defendants’ summary judgment motion.                      See


      1
         Following the MJ’s entry of summary judgment in this case, Rule 56 was amended,
but “[t]he standard for granting summary judgment remains unchanged.” FED. R. CIV. P. 56
advisory committee’s note (2010 Amendments).

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Washington v. Allstate Ins. Co., 901 F.2d 1281, 1285 (5th Cir. 1990). Although
Patel argues that the district court erred in granting summary judgment on
several retaliation claims that were not contested by the defendants, the motion
for summary judgment did in fact address them. Patel contends that a report
by the Justice Department’s Office of the Inspector General supported his
claims, but the report was not competent summary judgment evidence based on
personal knowledge. See FED. R. CIV. P. 56(c)(4).
      In addition, Patel challenges the dismissal of his mail claims, but this
court has held that the violation of a prison regulation requiring that a prisoner
be present when his incoming legal mail is opened and inspected is not a
violation of a prisoner’s constitutional rights. Brewer v. Wilkinson, 3 F.3d 816,
825 (5th Cir. 1993). Patel fails to identify cite particular parts of materials in
the record to show a genuine dispute as to whether Roberto Rangel in fact
“seized” and “censored” his letter to a newspaper in the face of Rangel’s sworn
declaration to the contrary. See FED . R. CIV. P. 56(e); Gates, 537 F.3d at 419.
With respect to the claim that Rangel opened and read an item of his outgoing
mail, Patel failed to establish that Rangel’s “allegedly wrongful conduct violated
clearly established law.” Gates, 537 F.3d at 419 (emphasis added); see also Busby
v. Dretke, 359 F.3d 708, 721 (5th Cir. 2004).
      Patel challenges the dismissal of his due process claim that the denial of
review hearings during his four months of segregation in the Special Housing
Unit violated his due process rights in light of federal regulations. The BOP’s
failure to follow procedural regulations does not necessarily violate due process
because “constitutional minima may nevertheless have been met.” Jackson v.
Cain, 864 F.2d 1235, 1251 (5th Cir. 1989). “[T]he threshold question necessary
for any finding of a violation of a prisoner’s right to procedural due process” is
“whether he had a liberty interest that the prison action implicated or infringed.”
Richardson v. Joslin, 501 F.3d 415, 418 (5th Cir. 2007) (internal quotation
marks and citation omitted). “[T]he touchstone of the inquiry into the existence

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                                   No. 10-11061

of a protected, state-created liberty interest in avoiding restrictive conditions of
confinement is not the language of regulations regarding those conditions but the
nature of those conditions themselves in relation to the ordinary incidents of
prison life.” Wilkinson v. Austin, 545 U.S. 209, 223 (2005) (emphasis added)
(internal quotation marks and citation omitted). We have held that confinement
on lockdown status for 13 months without a hearing did not pose an atypical or
significant hardship on an inmate, Hernandez v. Velasquez, 522 F.3d 556, 562
(5th Cir. 2008). We affirm the dismissal of the due process claim.
      Patel challenges the dismissal of his equal protection claim, but he does
not explain how he was treated differently from similarly situated prisoners.
“Bivens affords the victim of unconstitutional conduct by a federal actor or agent
a direct remedy under the Constitution.” Abate, 993 F.2d at 110 (emphasis
added). Patel argues that the MJ relied on incompetent summary judgment
evidence submitted by the defendants, including an unsigned declaration, but
the signed declarations of other BOP officials attest to the same facts based on
personal knowledge. See FED. R. CIV. P. 61 (harmless error rule).
      Patel’s challenge in his opening brief to the district court’s initial dismissal
of his claims against Haro for failure to effect service is now moot because the
district court vacated that ruling on remand. See McRae, 576 F.2d at 617. In his
supplemental brief, Patel argues that the district court erred in again dismissing
the claims against Haro. We hold that the district court did not err in allowing
Haro to benefit from the favorable disposition of the appearing defendants’
summary judgment motion. Lewis v. Lynn, 236 F.3d 766, 767-68 (5th Cir. 2001).
      AFFIRMED.




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