     Case: 09-50943 Document: 00511436341 Page: 1 Date Filed: 04/06/2011




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

                                                 FILED
                                                                             April 6, 2011

                                     No. 09-50943                           Lyle W. Cayce
                                   Summary Calendar                              Clerk



RODNEY WAYNE SMITH,

                                                   Plaintiff-Appellant
v.

WILLIE KIMBHAL, Administrator, Avalon Unit;
RICHARD PENA, Parole Supervisor; LUIS SILVA,
Parole Supervisor; VANESSA ORTIZ, Parole Officer,

                                                   Defendants-Appellees




                   Appeal from the United States District Court
                        for the Western District of Texas
                              USDC No. 3:08-00457


Before KING, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:*
       Rodney Wayne Smith (Smith), a former Texas prisoner, appeals the
district court’s dismissal of his 42 U.S.C. § 1983 action for failure to state a
claim. He raises numerous issues on appeal. Finding no reversible error, we
AFFIRM.


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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                                  No. 09-50943

      Smith contends that the district court erred in concluding that he had
failed to state a claim of inadequate medical care. Smith has failed to show or
even allege that he suffered substantial harm as a result of his failure to obtain
treatment for his hepatitis during his four months in El Paso. See Mendoza v.
Lynaugh, 989 F.2d 191, 195 (5th Cir. 1993). With respect to his untreated knee
fracture, to the extent that Smith’s brief may be construed as asserting that he
did suffer such harm, any such conclusional allegation is insufficient to overcome
a motion to dismiss. See Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th
Cir. 2002). As for Smith’s allegations regarding his patella fracture, at the time
of his injury, Smith was no longer within the custody of the defendants, all of
whom were based in El Paso; he makes no showing that they would have any
authority over the medical treatment he received in Houston.
      Smith next asserts that the district court erred in denying his motion for
reconsideration of the striking of his sanctions request and other pleadings
because under the Federal Rules of Civil Procedure, the clerk must accept a
document for filing and may not deny it based on errors in form. Smith correctly
asserts that pursuant to Federal Rule of Civil Procedure 5(d)(4), the clerk is
required to accept for filing a document that does not comply with the court’s
mandated form. Nonetheless, a judge may order a pleading stricken for failure
to comply with the local rules on form. See McClellon v. Lone Star Gas Co., 66
F.3d 98, 101 (5th Cir. 1995). In the instant case, after the clerk accepted the
documents, the magistrate judge properly ordered them stricken.
      Smith contends that he alleged a valid claim of the denial of equal
protection with respect to his parole terms. He maintains that he has been
treated differently from other similarly situated prisoners, who were not placed
under such onerous conditions despite their undesirable conduct while
incarcerated. Smith is attempting to make out an equal protection claim based
on a “class of one” theory; to do so, he must show that he “has been intentionally

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                                   No. 09-50943

treated differently from others similarly situated and that there is no rational
basis for the difference in treatment.” See Village of Willowbrook v. Olech, 528
U.S. 562, 564 (2000). However, Smith has provided insufficient information
from which this or any other court could ascertain whether he is “similarly
situated” to these other prisoners. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950
(2009).   Although Smith does compare his behavior in prison with other
prisoners, he has not provided any information about the sentences the other
prisoners received for their crimes, the circumstances surrounding their
offenses, or the information considered by the Board when determining whether
to release a prisoner on parole. Additionally, Smith makes only a conclusional
assertion as to the improper motive and retaliatory animus on the part of the
prison officials. This conclusional assertion is insufficient to overcome a Rule
12(b)(6) dismissal. See Taylor, 296 F.3d at 378. Smith has not established that
he is entitled to relief on this ground.
      Smith also contends that he alleged a claim of the denial of access to the
courts in that he was unable to “research the law” and file a timely petition for
discretionary review (PDR) in the Texas Court of Criminal Appeals or a writ of
certiorari in the United States Supreme Court. The right of access to the courts,
however, has been limited to an inmate’s ability to prepare and transmit a
necessary legal document to a court. Brewer v. Wilkinson, 3 F.3d 816, 821 (5th
Cir. 1993). Here, the records of the Texas Court of Criminal Appeals reflect that
he filed a PDR in October 2008, which was refused on December 8, 2008. As for
Smith’s allegations with respect to the writ of certiorari, he admits that he was
transferred from El Paso on January 14, 2009, 37 days after his PDR was
refused. Thus, Smith had 53 days before his writ of certiorari was due. See Sup.
Ct. R. 13(1). He thus has not shown that the actions of the El Paso defendants
“hindered” his ability to file a timely writ. See Christopher v. Harbury, 536 U.S.
403, 415 (2002).

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                                       No. 09-50943

       Smith maintains that the district court erred in denying his motion to
amend his complaint to add parties. “A court may deny a motion for leave to
amend if there is undue delay, bad faith or dilatory motive, undue prejudice or
futility of the amendment.” Test Masters Educ. Servs., Inc. v. Singh, 428 F.3d
559, 576 n.8 (5th Cir. 2005). Here, the district court determined, among other
things, that allowing the amendment would result in undue delay “given that
the currently named defendants have already filed answers and motions to
dismiss.” We conclude that Smith has not shown that the district court abused
its discretion in denying his motion to amend.
       Finally, Smith contends that his placement in a halfway house and the
imposition of Super Intensive Supervision Program (SISP) conditions constituted
a violation of due process.1 Smith relies on Meza v. Livingston, in which this
Court determined that a prisoner who had not been convicted of a sex offense
had a liberty interest in not being classified as a sex offender. 607 F.3d 392, 401
(5th Cir. 2010). This Court “found a liberty interest existed because sex offender
registration and therapy were highly stigmatizing and invasive conditions that
were ‘qualitatively different’ from other conditions regularly attached to parole.”
Id.2 Meza addressed only the requirements of sex offender registration and
therapy; the plaintiff in Meza did not challenge the imposition of the SISP
restrictions. The restrictions challenged by Smith (such as the halfway house
and electronic monitoring) do not rise to the “stigmatizing and invasive” level of
the sex offender requirements in Meza. “Neither the Fifth Circuit nor the
Supreme Court has afforded inmates a protected liberty interest in not having


       1
         We reject the defendants’ contention that this due process claim was not sufficiently
raised in his pleadings. Thus, the district court was in error in finding that the claim had not
been raised. Rather than remand for reconsideration, we determine that he has not stated a
claim.
       2
          Indeed, the therapy involves “intrusive and behavior-modifying techniques.”
Coleman v. Dretke, 395 F.3d 216, 223 (5th Cir. 2004).

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                                       No. 09-50943

SISP . . . or electronic monitoring conditions imposed as a condition of
mandatory supervised release.” Page v. Warren, No. 10-0332, 2011 WL 767222
at *3, (S.D. Tex. Feb. 22, 2011).3 Smith has not shown that the district court
erred in dismissing this claim.
       The judgment of the district court is AFFIRMED.




       3
          In their brief, the defendants defend certain rulings made by the district court that
Smith does not challenge on appeal. When an appellant fails to allege an error in the district
court’s analysis of a claim, such an argument is deemed abandoned. See Brinkmann v. Dallas
County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).

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