     Case: 16-20272      Document: 00514217521         Page: 1    Date Filed: 10/31/2017




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

                                    No. 16-20272                                   FILED
                                  Summary Calendar                          October 31, 2017
                                                                              Lyle W. Cayce
                                                                                   Clerk
BORIS TWAIN CLEWIS,

                                                 Plaintiff-Appellant

v.

LIEUTENANT BILLY D. HIRSCH; LIEUTENANT KEVIN G. MAYFIELD,
Assistant Warden; LAWANDA M. HIGHTOWER, Property Officer; INEEQUA
A. FISHER, Property Officer; ROBERT H. QUADA, JR., Librarian 3;
CAPTAIN GREGORY M. VAUGHN; MAJOR CORTNEY SCOTT; CAPTAIN
BRUCE D. BAGGETT; GARLAND R. GOODRUM, Correction Officer V;
MAJOR ROBERT J. JENKINS, JR.; CAPTAIN KENDRIC M. DEMYERS;
TERRILYN H. MERCHANT, Corrections Officer; LIEUTENANT J. G.
BURLESON; LIEUTENANT B. D. RIGSBY; UNKNOWN SELMAN, Assistant
Warden; VICKIE BARROW,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:13-CV-2308


Before REAVLEY, PRADO, and GRAVES, Circuit Judges.
PER CURIAM: *
       Boris Twain Clewis, Texas prisoner # 694570, appeals the summary
judgment dismissal of his civil rights complaint filed against numerous

       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-20272

employees of the Texas Department of Criminal Justice (TDCJ) in their official
and individual capacities while he was housed on the Wynne Unit. Clewis
alleged constitutional and Americans with Disabilities Act (ADA) claims
stemming from prison cell searches during which his personal and legal
property were allegedly wrongfully confiscated, damaged, and destroyed. He
has also moved this court to remand for a Spears 1 hearing, to supplement the
record, to appoint counsel, and for extraordinary relief and judicial notice
requiring employees of the Coffield Unit to preserve his confiscated property.
      We review the district court’s summary judgment dismissal de novo. See
McFaul v. Venezuela, 684 F.3d 564, 571 (5th Cir. 2012). As an initial matter,
Clewis attempts to adopt and incorporate his opposition to the motion for
summary judgment by reference and asks this court to take judicial notice of
that pleading. Even a pro se litigant, however, may not incorporate prior
pleadings by reference. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir.
1993). We therefore do not consider the arguments that Clewis has attempted
to incorporate into his brief.
      Clewis argues that the district court erred in granting summary
judgment on his claim that the destruction of legal materials pertaining to his
father’s succession constituted a denial of his right of access to the courts. The
district court found that summary judgment was appropriate as a matter of
law because the legal matters at issue did not relate to his underlying
conviction or conditions of confinement.             Clewis argues that this court in
Jackson v. Procunier, 789 F.2d 307, 311 (5th Cir. 1986), held that a prisoner’s
right of adequate access to the courts is not limited to matters concerning his
conviction and confinement but also includes the right to litigate general civil
matters, not limited to divorce proceedings and small civil claims.



      1   Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).
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      “[P]risoners have a constitutional right of access to the courts.” Bounds
v. Smith, 430 U.S. 817, 821 (1977).         Although “the precise contours of a
prisoner’s right of access to the courts remain somewhat obscure, the Supreme
Court has not extended this right to encompass more than the ability of an
inmate to prepare and transmit a necessary legal document to a court.” Brewer
v. Wilkinson, 3 F.3d 816, 821 (5th Cir. 1993) (footnotes omitted). This right
“encompasses only a reasonably adequate opportunity to file nonfrivolous legal
claims challenging their convictions or conditions of confinement.”         Jones
v. Greninger, 188 F.3d 322, 325 (5th Cir. 1999).
      In Jackson, this court declined to hold that the right of access to the
courts was limited to constitutional, civil rights, and habeas claims, and stated
that “reasonable access to the courts must include access in general civil legal
matters including but not limited to divorce and small claims.” 789 F.2d at
311 (internal quotation marks and citation omitted). However, after Jackson,
the Supreme Court rendered Lewis v. Casey, 518 U.S. 343, 355 (1996), in which
the court held that Bounds “does not guarantee inmates the wherewithal to
transform themselves into litigating engines capable of filing everything from
shareholder derivative actions to slip-and-fall claims.” “Impairment of any
other litigating capacity is simply one of the incidental (and perfectly
constitutional) consequences of conviction and incarceration.” Lewis, 518 U.S.
at 355. Thus, to recover for a denial of access to the courts, the prisoner must
establish that “an actionable claim [involving a challenge to a sentence or
conditions of confinement] which he desired to bring has been lost or rejected,
or that the presentation of such a claim is currently being prevented . . . .” Id.
at 356.
      Consequently, as a matter of law, the destruction of legal materials
pertaining to Clewis’s work on his father’s succession does not rise to the level
of a denial of the right of access to the courts. See id. Clewis’s additional

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                                  No. 16-20272

contention that the prison law library did not have the books he desired on
probate and tax law also does not rise to the level of a constitutional
deprivation, as there is no “abstract, freestanding right to a law library or legal
assistance,” and an inmate cannot demonstrate the requisite actual injury for
an access-to-the-courts claim “simply by establishing that his prison’s law
library or legal assistance program is subpar in some theoretical sense.” Lewis,
518 U.S. at 351. To the extent that Clewis also takes issue with the district
court’s finding that he was denied access to the law library on only a couple of
occasions, he does so in a conclusional fashion, and he does not allege that this
adversely affected his ability to proceed with a pending case regarding his
underlying conviction or conditions of confinement. See id. at 356. Clewis has
not shown that there is a genuine dispute as to any material fact with regard
to his access-to-the-courts claims, and the defendants were entitled to
judgment as a matter of law. See FED. R. CIV. P. 56(a).
      Clewis has inadequately briefed, and thus waived, review of the district
court’s dismissal of the remainder of his claims regarding the liability of the
defendants in their official and individual capacities for the damage and
destruction of his property both randomly and pursuant to prison policy; the
denial of due process during his disciplinary proceedings; the denial of due
process in securing storage space for his excess property; the denial of his
Eighth Amendment rights in refusing him a cart to transport his property; the
denial of his retaliation claims; and the denial of his ADA claims. See Yohey,
985 F.2d at 225; Brinkmann v. Dallas Cnty. Deputy Sheriff Abner, 813 F.2d
744, 748 (5th Cir. 1987).
    AFFIRMED; MOTIONS TO REMAND FOR A SPEARS HEARING, TO
SUPPLEMENT THE RECORD, TO APPOINT COUNSEL, AND FOR
EXTRAORDINARY RELIEF AND JUDICIAL NOTICE (ENTITLED
“EMERGENCY MOTION FOR A PRESERVATION ORDER”) DENIED.



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