     Case: 14-51116       Document: 00513446720         Page: 1     Date Filed: 03/31/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                     No. 14-51116
                                   Summary Calendar
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit

                                                                                 FILED
                                                                            March 31, 2016
MARK WALTERS,
                                                                            Lyle W. Cayce
                                                                                 Clerk
                                                  Plaintiff - Appellant

v.

BRAD LIVINGSTON; THOMAS PRASIFKA; JONI WHITE,

                                                  Defendants - Appellees


                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 1:12-CV-1072


Before BARKSDALE, CLEMENT, and ELROD, Circuit Judges.
PER CURIAM: *
       Proceeding pro se, Mark Walters, former Texas prisoner # 1596102,
challenges the dismissal of his federal violation-of-religious-freedom and
constitutional claims against three Texas Department of Criminal Justice
(TDCJ) officials.
       In January 2012, while confined at a TDCJ facility, Walters officially
changed his faith preference to Native American; at the time, he resided in a


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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: 14-51116     Document: 00513446720     Page: 2   Date Filed: 03/31/2016


                                  No. 14-51116

Native-American-designated housing unit.            That April, Walters was
transferred to a non-Native-American unit. While en route to that unit, he was
involved in an incident with a corrections officer, and subsequently was found
guilty of a disciplinary violation. (Walters asserts the incident never occurred.)
As a result of that violation, his custody level was increased to G4: “medium
custody”. Walters’ later request for a transfer back to a Native-American unit
was denied because, pursuant to TDCJ policy, G4 inmates are ineligible for
such transfers.
      Walters sued in state court claiming, inter alia, violations of the First
and Fourteenth Amendments. Following removal to federal court, where the
parties consented to a magistrate judge’s (MJ) presiding, Walters twice
amended his complaint, and the parties cross-moved for summary judgment.
In June 2014, Walters was released from prison. As a result, the TDCJ officials
moved for dismissal on the basis of mootness. Walters moved to amend his
complaint a third time; his request was denied.
      That September, the MJ dismissed: pursuant to Rule 12(b)(1), Walters’
federal-official-capacity claims for injunctive and declaratory relief; and,
pursuant to Rule 12(b)(6), his federal-official-capacity claims for monetary
damages. Additionally, the MJ awarded summary judgment against Walters’
federal-individual-capacity claims.     Finally, the MJ declined to exercise
supplemental jurisdiction over Walters’ remaining state-law claims, and
remanded them to state court.       Walters appeals the dismissal, summary
judgment, and several of the MJ’s other rulings.
      First, Walters asserts the TDCJ’s religious-transfer policy is facially
unconstitutional, and maintains the MJ failed to consider this challenge. Even
affording his pro se pleadings the liberal construction to which they are
entitled, e.g., Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993), Walters’



                                        2
    Case: 14-51116     Document: 00513446720      Page: 3   Date Filed: 03/31/2016


                                  No. 14-51116

contentions for this issue are waived, because he failed to properly preserve
them at the summary-judgment stage. See Keenan v. Tejeda, 290 F.3d 252,
262 (5th Cir. 2002).
      Second, Walters challenges: the MJ’s overruling his objection to an
extension of time for the TDCJ officials to file a renewed summary-judgment
motion; and, the denial of his related motion to expedite summary judgment.
A court’s modification of a scheduling order is reviewed for abuse of discretion.
E.g., Huval v. Offshore Pipelines, Inc., 86 F.3d 454, 458 (5th Cir. 1996). The
request for an extension was prompted by Walters’ filing his second amended
complaint, and valid reasons were offered for why the TDCJ officials could not
reasonably meet the motions deadline. See Marathon Fin. Ins., Inc., RRG v.
Ford Motor Co., 591 F.3d 458, 470 (5th Cir. 2009). Moreover, Walters’ ability
to seek declaratory and injunctive relief was not prejudiced by the extension;
accordingly, he fails to show the MJ abused his discretion. See Huval, 86 F.3d
at 458.
      Third, Walters asserts the MJ erred in dismissing, under Rule 12(b)(1),
his federal injunctive-and-declaratory-relief claims. Dismissal was proper,
however, because Walters’ claims became moot upon his release from prison.
See Herman v. Holiday, 238 F.3d 660, 665 (5th Cir. 2001); In re FEMA Trailer
Formaldehyde Prods. Liab. Litig. (Miss. Plaintiffs), 668 F.3d 281, 286 (5th Cir.
2012).
      Fourth, Walters maintains the MJ erred in dismissing, under Rule
12(b)(6), his federal-official-capacity claims for monetary damages. Walters’
assertions are unavailing, because “neither a state nor its officials acting in
their official capacities are ‘persons’ under § 1983”. Will v. Mich. Dep’t of State
Police, 491 U.S. 58, 71 (1989). Accordingly, Walters’ monetary-damages claims




                                        3
    Case: 14-51116      Document: 00513446720      Page: 4    Date Filed: 03/31/2016


                                   No. 14-51116

were properly dismissed. Stauffer v. Gearhart, 741 F.3d 574, 583 (5th Cir.
2014).
      Fifth, Walters contends the MJ erred in awarding summary judgment
against his remaining federal claims. A summary judgment is reviewed de
novo, applying the same standards as the district court. Tiblier v. Dlabal, 743
F.3d 1004, 1007 (5th Cir. 2014). Summary judgment is appropriate where 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). For
the following reasons, no genuine disputes of material fact exist for any of
Walters’ claims.
      In his opening brief, Walters fails to present any contentions for how the
TDCJ officials were involved with the claimed violation of his due-process
rights.   Accordingly, he has abandoned this challenge.           United States v.
Jackson, 426 F.3d 301, 304 n.2 (5th Cir. 2005) (“Arguments raised for the first
time in a reply brief, even by pro se litigants . . . are waived.”).
      Regarding his assertion that his right to religious freedom was violated,
Walters fails to show a genuine dispute of material fact exists for whether the
TDCJ officials: were personally involved in the decision to transfer him from
the Native-American unit; were personally involved in the denial of his
transfer request; or “implement[ed] a policy so deficient that the policy itself is
a repudiation of constitutional rights and is the moving force of the
constitutional violation”. Thompkins v. Belt, 828 F.2d 298, 304 (5th Cir. 1987)
(internal quotation marks omitted). For his failure-to-train and supervisory
claims, Walters offers nothing more than conclusory allegations, which are
insufficient to defeat summary judgment. See Eason v. Thaler, 73 F.3d 1322,
1325 (5th Cir. 1996).




                                          4
    Case: 14-51116     Document: 00513446720      Page: 5   Date Filed: 03/31/2016


                                  No. 14-51116

      For his equal-protection claim, Walters briefs no contentions regarding
individual defendant Brad Livingston; therefore, he has abandoned that claim
against him. Yohey, 985 F.2d at 224–25. For the other TDCJ officials, Walters
contends his equal-protection claim is based on their failure to train and
supervise personnel. To pursue an equal-protection claim independent of his
free-exercise claim, Walters “must allege and prove that he received treatment
different from that received by similarly situated individuals and that the
unequal treatment stemmed from a discriminatory intent”. Taylor v. Johnson,
257 F.3d 470, 473 (5th Cir. 2001). Walters fails to allege any specific facts
showing the complained-of actions were done with a discriminatory intent.
Along that line, because he fails to demonstrate an underlying constitutional
violation, he cannot establish a basis for supervisory liability against the TDCJ
officials. See Rios v. City of Del Rio, Tex., 444 F.3d 417, 425 (5th Cir. 2006).
      Sixth, Walters challenges the MJ’s denial of his motion for leave to file a
third amended complaint, in order to add two current TDCJ inmates as
plaintiffs. Because Walters failed to show good cause existed to allow the
amendment, see Fahim v. Marriott Hotel Servs., Inc., 551 F.3d 344, 348 (5th
Cir. 2008), the MJ did not abuse his broad discretion. See Crostley v. Lamar
Cty., Tex., 717 F.3d 410, 420 (5th Cir. 2013); see also Noel v. Webre, 426 F. App’x
247, 248 (5th Cir. 2011).
      Finally, Walters abandons, by failing to brief, any challenge to the MJ’s
refusal to exercise supplemental jurisdiction over his state-law claims. See
Yohey, 985 F.2d at 224–25.
      AFFIRMED.




                                        5
