     Case: 13-60259      Document: 00513029709         Page: 1    Date Filed: 05/04/2015




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

                                    No. 13-60259                                  FILED
                                  Summary Calendar                             May 4, 2015
                                                                             Lyle W. Cayce
                                                                                  Clerk
DEMETRIUS S. RANKIN,

                                                 Plaintiff-Appellant

v.

BRUCE PEARSON; LEROY PITTS; ARTHUR TRUEX; FREDRICK
GRIFFIN; ARMAND LAROCHELLE; MICHAEL MORRIS; KEITH
EVERETT; LISA CHISOLM-REAMS; ANTHONY CHAMBERS; B.
PITTMAN; JENNIFER BOONE; CHARLES SMITH; WILLETTE
SMITHERS; T. ALLEN; C. WILLIAMSON; C. MCGINTY; F.
TROUBLEFIELD,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 5:11-CV-138


Before HIGGINBOTHAM, JONES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Demetrius S. Rankin, federal prisoner # 03266-043, filed a civil rights
action against numerous prison officials under Bivens v. Six Unknown Named
Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). He appeals the


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-60259

district court’s summary judgment dismissal of his claims. 1 Rankin requests
reconsideration of the Clerk’s order denying him leave to file an out-of-time
reply brief. We GRANT that motion and have considered the reply brief. See
FED. R. APP. P. 26(b).
       We review a 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 the
movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a).
       Rankin argues that the district court erred in dismissing his retaliation
claims regarding events that began around November 2009 for failure to
exhaust administrative remedies and under the doctrine of qualified
immunity. He has not shown error. See Dillon v. Rogers, 596 F.3d 260, 273
(5th Cir. 2010). Prior to bringing suit, a prisoner must exhaust all available
administrative remedies. 42 U.S.C. § 1997e(a). Rankin argues that he should
be excused from the exhaustion requirement or that the defendants should be
estopped from raising an exhaustion defense. However, he has not shown that
either remedy, even if available, is warranted in his case. See Gonzalez v. Seal,
702 F.3d 785, 788 (5th Cir. 2012); Dillon, 596 F.3d at 270. Rankin contends
that the district court erred by dismissing his unexhausted claims with
prejudice. However, modification of the judgment would be futile because
Rankin cannot now exhaust those claims. See Manemann v. Garrett, 484 F.
App’x 857, 859 (5th Cir. 2012). As the district court did not err in dismissing
Rankin’s November 2009 claims as unexhausted, we do not address the court’s
reliance on qualified immunity.


       1 Rankin has waived any challenge to the dismissal of his claims regarding the
opening of his legal mail by failing to brief that issue on appeal. See Yohey v. Collins, 985 F.2d
222, 224-25 (5th Cir. 1993).


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                                 No. 13-60259

      Rankin also argues that the district court erred in dismissing his
retaliation claims regarding events that began in May 2010 for failure to
exhaust administrative remedies, as moot, and based on qualified immunity.
The record shows that Rankin may have exhausted his May 2010 claims.
Moreover, it is not clear that his claims for monetary compensation were
rendered moot by the eventual expungement of the disciplinary conviction that
was part of that May 2010 incident. See Motient Corp. v. Dondero, 529 F.3d
532, 537 (5th Cir. 2008). However, the district court did not err in dismissing
those claims under the doctrine of qualified immunity. See QBE Ins. Corp. v.
Brown & Mitchell, Inc., 591 F.3d 439, 443 (5th Cir. 2009) (“We may affirm
summary judgment on any basis raised below and supported by the record.”).
      Qualified immunity protects government officials whose “conduct does
not violate clearly established statutory or constitutional rights of which a
reasonable person would have known.” Hathaway v. Bazany, 507 F.3d 312,
320 (5th Cir. 2007) (internal quotation marks and citation omitted). Rankin
failed to rebut the defendants’ assertion of qualified immunity because he could
not show that their conduct violated his constitutional rights. See Gates v.
Texas Dep’t of Protective and Regulatory Servs., 537 F.3d 404, 419 (5th Cir.
2008). To prevail on a retaliation claim Rankin was required to establish that
(1) he invoked a specific constitutional right, (2) the defendants had intent to
retaliate against him due to his exercising that right, (3) a retaliatory adverse
act, and (4) a causal connection. Jones v. Greninger, 188 F.3d 322, 324-25 (5th
Cir. 1999). Rankin’s conclusional allegations that the defendants’ actions were
motivated by retaliatory animus were insufficient to present a genuine issue
of material fact regarding causation. See Brown v. Callahan, 623 F.3d 249,
253 (5th Cir. 2010).




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                                No. 13-60259

      Although Rankin asserts that discovery would have produced evidence
supporting his claims, he has not shown that discovery would have created a
genuine issue of material fact. Accordingly, Rankin has not shown that the
district court abused its discretion by denying his motion for a continuance in
order to conduct discovery. See Beattie v. Madison Cnty. Sch. Dist., 254 F.3d
595, 606 (5th Cir. 2001). Rankin also has not shown that the district court
erred in citing alternative grounds for the dismissal of his claims against a
number of the defendants and in dismissing his related due process and
conspiracy claims.
      Finally, Rankin argues that the district court erred by refusing to allow
him to amend his complaint as of right and, alternatively, by dismissing the
claims in his amended complaint because they were unexhausted at the time
Rankin filed his original complaint. Citing Smith v. Olsen, 455 F. App’x 513
(5th Cir. 2011), Rankin argues that his claims should not have been dismissed
because they were exhausted at the time he filed his amended complaint.
However, Smith is a non-precedential, unpublished opinion that in any event
involved unique circumstances, not present in Rankin’s case, which warranted
an exception to the exhaustion requirement. Although the district court should
have permitted Rankin to amend his complaint, see FED. R. CIV. P. 15(a), it did
not err by dismissing the claims in that complaint for failure to exhaust. See
Gonzalez, 702 F.3d at 788.
      The judgment of the district court is AFFIRMED.




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