     Case: 14-40319      Document: 00512811890         Page: 1    Date Filed: 10/22/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-40319                         United States Court of Appeals
                                  Summary Calendar                                Fifth Circuit

                                                                                FILED
                                                                         October 22, 2014
HUMBERTO HINOJOSA,                                                         Lyle W. Cayce
                                                                                Clerk
              Plaintiff – Appellant,

v.

UNITED STATES BUREAU OF PRISONS; WARDEN BASTROP,
FEDERAL CORRECTIONAL INSTITUTE; UNITED STATES OF
AMERICA,

              Defendants – Appellees.




                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 7:10-CV-63


Before SMITH, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Humberto Hinojosa appeals from the district court’s
final order granting summary judgment to Defendant-Appellee Claude Maye
in his suit alleging that he was improperly deprived of his good-time credit,
delaying his release from prison. 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-40319
                                       I.
      After his release from federal prison, Hinojosa filed suit against the
Federal Bureau of Prisons (BOP) and Claude Maye as “Warden Bastrop,
Federal Correctional Institute” (Maye), alleging that due to a deprivation of
his accrued good-time credit, he was improperly detained after fully serving
his sentence. The United States was substituted as the sole defendant, and
Hinojosa amended his complaint to rejoin the BOP and Maye. The district
court granted the United States’ motion for summary judgment and also
dismissed with prejudice Hinojosa’s claims against the BOP and Maye.
Hinojosa appealed, and we affirmed the dismissal of the claims against the
BOP. However, we modified the judgment to dismiss without prejudice the
claim against the United States. As to this claim, we concluded that the
district court lacked jurisdiction because Hinojosa had not exhausted his
administrative remedies.    Finally, we vacated the dismissal of the claim
against Maye. As to this claim, we noted that Hinojosa had not pleaded any
facts specifically showing how Maye violated his rights. A dismissal with
prejudice was not appropriate at the time, however, because we could not say,
based on the record before us, that it was impossible for Hinojosa to state a
claim against Maye.
      On remand, Maye filed a motion for summary judgment accompanied by
a declaration, averring that he had no involvement in the computation of
Hinojosa’s sentence and good-time credit. Hinojosa did not respond to Maye’s
motion, but instead asked the district court to strike it. He also moved for the
district judge to recuse himself. The district court denied Hinojosa’s motions
and granted Maye’s summary judgment motion. The court then entered a final
judgment that dismissed with prejudice Hinojosa’s claim against Maye. After
the district court denied Hinojosa’s Rule 59 motion to amend the judgment,
Hinojosa initiated this appeal.
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                                  No. 14-40319
                                      II.
      On appeal, Hinojosa argues that the district court violated our mandate
by: (1) failing to issue a separate order stating whether the statute of
limitations had run on his claim against Maye; (2) failing to issue a separate
order stating that Hinojosa’s claim against the United States was dismissed
without prejudice; and (3) allowing Maye to submit a summary judgment
motion and affidavit on remand.
      Hinojosa misunderstands the effect of our prior rulings. In the previous
appeal, we vacated the district court’s dismissal of Hinojosa’s claim against
Maye, rather than modifying the dismissal to be without prejudice, so that
Hinojosa could amend his complaint on remand unimpeded by the statute of
limitations. Our ruling did not require the district court to enter a separate
order concerning the statute of limitations, and Hinojosa’s argument to the
contrary is meritless. Similarly unavailing is Hinojosa’s contention that the
district court should have entered a separate order stating that his claim
against the United States was dismissed without prejudice. The district court
was not required to enter a separate, modified judgment because we had
already modified the court’s judgment.
      In addition, neither our prior rulings nor the waiver doctrine precluded
Maye from filing a summary judgment motion and accompanying affidavit on
remand. In the previous appeal, we held that a Rule 12(b)(6) dismissal without
prejudice of Hinojosa’s claim against Maye was improper because Hinojosa
should have had an opportunity to amend his complaint; we did not hold that
Hinojosa’s claim could survive summary judgment. Furthermore, the waiver
doctrine is inapplicable because Maye did not attempt to raise an issue in his
summary judgment motion that could have been raised during the previous
appeal. See Med. Ctr. Pharmacy v. Holder, 634 F.3d 830, 834 (5th Cir. 2011)
(observing that the waiver doctrine “holds that an issue that could have been
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                                        No. 14-40319
but was not raised on appeal is forfeited and may not be revisited by the district
court on remand”) (emphasis in original).                  Hinojosa argues that Maye’s
affidavit should have been submitted on appeal, rather than on remand, but
he cites no authority for that proposition. Indeed, Rule 56 of the Federal Rules
of Civil Procedure provides that “at any time until 30 days after the close of all
discovery,” a party may move for summary judgment, and the district court
“shall grant summary judgment 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), (b) (emphases added). Moreover, a party
may support its summary judgment motion by an affidavit or declaration made
on personal knowledge. Fed. R. Civ. P. 56(c)(4).
       On de novo review, and applying the same standard that the district
court applied, Atkins v. Bert Bell/Pete Rozelle NFL Player Ret. Plan, 694 F.3d
557, 566 (5th Cir. 2012), we conclude that Maye’s uncontested affidavit showed
that there was no genuine dispute as to whether he had any involvement in
the computation of Hinojosa’s sentence and good-time credit. Therefore, Maye
was entitled to judgment as a matter of law. See Ashcroft v. Iqbal, 556 U.S.
662, 676 (2009) (“Because vicarious liability is inapplicable to Bivens . . . suits,
a plaintiff must plead that each Government-official defendant, through the
official’s own individual actions, has violated the Constitution.”); 1 see also Fed.
R. Civ. P. 56(e)(3) (if the nonmoving party fails to properly address the moving



       1 As in the previous appeal, we decline to decide whether a Bivens action may be
brought for a federal official’s denial of due process in connection with the calculation of good-
time credits. See Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 70 (2001) (“In 30 years of Bivens
jurisprudence we have extended its holding only twice, to provide an otherwise nonexistent
cause of action against individual officers alleged to have acted unconstitutionally, or to
provide a cause of action for a plaintiff who lacked any alternative remedy for harms caused
by an individual officer’s unconstitutional conduct. Where such circumstances are not
present, we have consistently rejected invitations to extend Bivens . . . .”) (emphases in
original).
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                                  No. 14-40319
party’s assertion of fact, “the court may grant summary judgment if the motion
and supporting materials—including the facts considered undisputed—show
that the movant is entitled to it”).
                                       III.
      Hinojosa also argues that the district court erred when it denied his
motion to recuse. “We review a denial of a motion to recuse for abuse of
discretion.” Brown v. Oil States Skagit Smatco, 664 F.3d 71, 80 (5th Cir. 2011).
“The judge abuses his discretion in denying recusal where a reasonable man,
cognizant of the relevant circumstances surrounding the judge’s failure to
recuse, would harbor legitimate doubts about that judge’s impartiality.” Id.
(internal quotation marks and alteration omitted). Hinojosa points only to the
district court’s rulings against him as evidence of bias. “‘[J]udicial rulings
alone almost never constitute a valid basis for a bias or partiality motion.’”
Andrade v. Chojnacki, 338 F.3d 448, 455 (5th Cir. 2003) (quoting Liteky v.
United States, 510 U.S. 540, 555 (1994)). Judicial rulings “‘can only in the
rarest circumstances evidence the degree of favoritism or antagonism required
. . . .’” Id. (quoting Liteky, 510 U.S. at 555). Hinojosa has failed to show that a
reasonable person would question the district judge’s impartiality in this case.
Therefore, the district court did not abuse its discretion in denying Hinojosa’s
motion to recuse.
                                       IV.
      Having considered Hinojosa’s position in light of the briefs and pertinent
portions of the record, we find no reversible error. The judgment of the district
court is AFFIRMED.




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