     Case: 10-40021 Document: 00511419836 Page: 1 Date Filed: 03/22/2011




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

                                                 FILED
                                                                           March 22, 2011
                                     No. 10-40021
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

RODNEY DEON BETHANY,

                                                   Plaintiff-Appellant

v.

FRANK REESCANO, Warden; GWENDOLYN SPURLOCK, Librarian; VANCE
DRUM, Chaplain; TANGELA BOLTON, Correctional Officer,

                                                   Defendants-Appellees


                    Appeal from the United States District Court
                         for the Eastern District of Texas
                              USDC No. 9:08-CV-104


Before DAVIS, SMITH and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Rodney Deon Bethany, Texas prisoner # 1221925, appeals from the
dismissal of his 42 U.S.C. § 1983 complaint as frivolous and for failing to state
a claim against Warden Frank Reescano and from the summary judgment
dismissal of his § 1983 complaint and his claim pursuant to the Religious Land
Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc, against
Gwendolyn Spurlock. Bethany filed suit after he was unable to attend morning


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-40021 Document: 00511419836 Page: 2 Date Filed: 03/22/2011

                                  No. 10-40021

Ramadan meals in 2007 because they were scheduled for the same time that he
was allowed to use the prison law library, where he was doing research for his
challenge to his imprisonment.
      We review the dismissals de novo. Geiger v. Jowers, 404 F.3d 371, 373
(5th Cir. 2005) (28 U.S.C. § 1915A); Cuadra v. Houston Indep. School Dist., 626
F.3d 808, 812 (5th Cir. 2010) (summary judgment). “A complaint is frivolous if
it lacks an arguable basis in law or fact, and a complaint lacks such a basis if it
relies on an indisputably meritless legal theory.” Taylor v. Johnson, 257 F.3d
470, 472 (5th Cir. 2001).     Summary judgment is appropriate if the record
discloses “that there is no genuine dispute as to any material fact and that the
movant is entitled to judgment as a matter of law.” F ED. R. C IV. P. 56(a) (2010).
      This appeal implicates the First and Fourteenth Amendments.              See
Wisconsin v. Yoder, 406 U.S. 205, 215-16 (1972). However, the district court
correctly determined that Reescano did not violate Bethany’s constitutional
rights by rejecting the grievances that Bethany filed against Spurlock. A failure
to reach a result desired by a prisoner-grievant is not a deprivation of due
process. Geiger, 404 F.3d at 374. Additionally, Bethany cannot prevail on a
claim against Reescano based solely on an allegation that Reescano had
“policymaking authority.”       The question whether an official has final
policymaking authority pertains to a determination of municipal liability, not
individual liability. Jett v. Dallas Independent School Dist., 7 F.3d 1241, 1244-
50 (5th Cir. 1983). Official capacity claims are in reality claims against the
state, and the Eleventh Amendment makes a state immune under § 1983 if the
state invokes its immunity, as the state did in the present case. See Frew v.
Hawkins, 540 U.S. 432, 437 (2004). Given that Bethany suggests no other basis
for holding Reescano liable in his individual capacity, no such liability can be
imposed under § 1983. Because Bethany advanced no arguable basis for a
judicial conclusion that he has any claim against Reescano, the district court did



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                                  No. 10-40021

not err when it dismissed that claim as frivolous. See Geiger, 404 F.3d at 373;
Taylor, 257 F.3d at 472.
      Because Bethany cites no case that, on facts materially similar to his own,
clearly established the unconstitutionality of a policy such as his prison’s policy
governing out-of-cell time, he fails to defeat Spurlock’s qualified immunity
defense. See Sossamon v. Lone Star State of Texas, 560 F.3d 316, 332-34 (5th
Cir. 2009), cert. granted, 130 S. Ct. 3319 (2010); see also Brewer v. Wilkinson,
3 F.3d 816, 820 (5th Cir. 1993) (affirming the grant of summary judgment on a
basis other than that recited by the district court).
      Citing Sossamon, 560 F.3d 316, the district court dismissed the RLUIPA
damages claim against Spurlock. In Sossamon, we concluded (1) that RLUIPA
does not allow for individual capacity liability for damages and (2) that
“[w]hether or not RLUIPA creates [an official capacity damages] action, it is
barred by Texas’s sovereign immunity.” 560 F.3d at 329. Sossamon is binding
precedent, despite the intervening grant of certiorari. See United States v.
Short, 181 F.3d 620, 624 (5th Cir. 1999); Ellis v. Collins, 956 F.2d 76, 79 (5th
Cir. 1992). Accordingly, the district court did not err regarding this claim.
      We reject also Bethany’s contention that he was entitled to summary
judgment. As shown above, Bethany’s RLUIPA claims fail, and Bethany stated
no § 1983 claim against either Reescano or Spurlock. Therefore, Bethany was
not entitled “to judgment as a matter of law.” F ED. R. C IV. P. 56(a).
      We find no merit in Bethany’s contention that he achieved the
modification of a policy that infringed on his federal rights and that he is
therefore entitled to attorneys’ fees and costs as a “prevailing party” under 42
U.S.C. § 1988(b). Bethany is not a prevailing party under § 1988(b) because
there was no “judicially sanctioned change in the legal relationship of the
parties.” Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health and
Human Res., 532 U.S. 598, 605 (2001). Additionally, as Bethany has not shown



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                                 No. 10-40021

exceptional circumstances, his request for appointment of counsel is denied.
Cupit v. Jones, 835 F.2d 82, 86 (5th Cir. 1987).
      AFFIRMED.




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