     Case: 10-20136 Document: 00511343467 Page: 1 Date Filed: 01/07/2011




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

                                                 FILED
                                                                           January 7, 2011
                                     No. 10-20136
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

ROBERT A. TUFT,

                                                   Plaintiff - Appellant

v.

THE STATE OF TEXAS; BRENDA CHANEY, former Warden of Jester 3 Unit;
KATHREN GONZALES, Lieutenant of Correctional Office at the Jester 3 Unit;
RICHARD LEAL, Assistant Warden of the Jester 3 Unit; EDDIE WILSON; R.
WALDON; TEXAS DEPARTMENT OF CRIMINAL JUSTICE; J. P. GUYTON;
KELLI WARD; MARY WARD; FRANK HOKE; DENISE JACKSON; MARY
BECERRA; REGINALD HALL; BRENDA CARVER; JOE HICKS; DOUGLAS
DRETKE, former Director of Texas Criminal Justice-Correctional Institutions
Division (CID); JOHN DOE; JANE DOE; NATHANIEL QUARTERMAN,
Current Director of Correctional Institutions Division; VERNON PITTMAN,
current Warden of Jester 3 Unit,

                                                   Defendants - Appellees


                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 4:06-CV-2529


Before WIENER, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*



       *
        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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-20136 Document: 00511343467 Page: 2 Date Filed: 01/07/2011

                                   No. 10-20136

      Proceeding pro se, Robert A. Tuft, Texas prisoner # 1062966, appeals the
summary-judgment dismissal of his civil rights action, filed under 42 U.S.C. §
1983, as well as other rulings by the district court. Tuft sued the State of Texas,
the Texas Department of Criminal Justice (TDCJ), and numerous prison officials
in their individual and official capacities, seeking nominal, compensatory, and
punitive damages, declaratory and injunctive relief, and transfer to federal-
protective custody.    Tuft alleged prison conditions, including unsanitary
conditions, waiting in line to receive medication, and female guards participating
in strip searches of male prisoners, violated the Eighth and Fourteenth
Amendments, and the Americans with Disabilities Act (ADA), 42 U.S.C. §§
12101-12213. Summary judgment was granted against Tuft’s claims.
      In regard to the court’s interlocutory rulings, Tuft contends the district
court erred by ordering him to file a more definite statement of his claims. Such
an order is reviewed for abuse of discretion. Old Time Enters., Inc. v. Int’l Coffee
Corp., 862 F.2d 1213, 1217 (5th Cir. 1989). Although Tuft maintains most of the
information the district court required by its order was already included in his
pleadings, the order identified specific details Tuft failed to provide in his
amended complaint. See Eason v. Thaler, 14 F.3d 8, 9 (5th Cir. 1994).
      Tuft further asserts the court erred by requiring in its order for a more
definite statement that he provide information related to exhaustion of claims.
See Jones v. Bock, 549 U.S. 199, 216 (2007) (holding inmate not required to
demonstrate exhaustion in complaint). Error, if any, was harmless because the
court did not dismiss any of Tuft’s claims as unexhausted until after defendants
raised exhaustion in their answer as an affirmative defense and moved for
summary judgment on that basis. See F ED. R. C IV. P. 61 (noting court must
disregard all errors not affecting party’s substantial rights).
      Other interlocutory rulings Tuft challenges include denial of his motions
for leave to amend his pleadings, under Federal Rule of Civil Procedure 15(a)(2).
Denial of such motion is also reviewed for abuse of discretion. Foman v. Davis,

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371 U.S. 178, 182 (1962). “While leave to amend must be freely given, that
generous standard is tempered by the necessary power of a district court to
manage a case”, Shivangi v. Dean Witter Reynolds, Inc., 825 F.2d 885, 891 (5th
Cir. 1987); and “a busy district court need not allow itself to be imposed upon by
the presentation of theories seriatim”, Rosenzweig v. Azurix Corp., 332 F.3d 854,
865 (5th Cir. 2003) (internal citation and quotation marks omitted).
      Because Tuft requested leave to amend his pleadings after he already filed
an amended complaint, his motions for leave to amend were subject to the
court’s discretion under Rule 15(a)(2). The court’s ruling was consistent with a
concern for avoiding “undue prejudice to the opposing party by virtue of
allowance of the amendment”, a “permissible base[] for denial of a motion to
amend”. Wright v. Allstate Ins. Co., 415 F.3d 384, 391 (5th Cir. 2005) (internal
citation and quotation marks omitted).
      Tuft failed to brief any challenge to the denial of his motions for
reconsideration of those rulings; accordingly, that issue is waived. See Hughes
v. Johnson, 191 F.3d 607, 613 (5th Cir. 1999).
      Tuft also appeals the denial of leave to file a supplemental complaint to
include claims arising after the date of his amended complaint. Such denial is
reviewed for abuse of discretion; however, Tuft fails to explain why the district
court’s decision constituted such abuse. Burns v. Exxon Corp., 158 F.3d 336, 343
(5th Cir. 1998).
      Finally, Tuft maintains the district court abused its discretion in denying
his motion to file supplemental records consisting of documents showing ADA
architectural guidelines.   The district court properly struck the document
because Tuft failed to verify them. See DIRECTV, Inc. v. Budden, 420 F.3d 521,
529-31 (5th Cir. 2005); see also F ED. R. C IV. P. 56(c)(4). Although Tuft also
challenges the denial of reconsideration of its order striking the documents, he
has not briefed his claim against that ruling, and, therefore, waived any error
attending it. See Hughes, 191 F.3d at 613.

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      Tuft asserts the district court erred by failing to apply the continuing-tort
doctrine to claims it ruled as time-barred under 28 U.S.C. § 1915A. A dismissal
of claims under § 1915A is reviewed de novo. Geiger v. Jowers, 404 F.3d 371, 373
(5th Cir. 2005). For purposes of the continuing-tort doctrine, “a continuous tort
involves not only continuing wrongful conduct, but continuing injury as well”.
Upjohn Co. v. Freeman, 885 S.W.2d 538, 542 (Tex. App. 1994). Tuft did not
allege continuing injury with respect to the claims dismissed as time barred. For
example, although Tuft maintained unsanitary prison conditions caused his
ongoing bacterial infection, and that those conditions persisted, he did not assert
that the “wrongful conduct continues to effect additional injury”. Id.
      Tuft also contends the court improperly dismissed, pursuant to 42 U.S.C.
§ 1997e(e), his ADA and constitutional claims regarding prison conditions;
however, this assertion is unavailing to the extent he sought compensatory
damages. See Geiger, 404 F.3d at 375 (stating failure to allege physical injury
precludes recovery of compensatory damages for mental or emotional injuries).
We also review de novo the dismissal of claims under § 1997e(e). Geiger, 404
F.3d at 373. Although § 1997e(e) prohibits Tuft from recovering compensatory
damages, it does not bar his ability to recover nominal and punitive damages for
constitutional violations despite the lack of any physical injury. Hutchins v.
McDaniels, 512 F.3d 193, 198 (5th Cir. 2007). In any event, even if the dismissal
of claims for “monetary” damages included nominal and punitive damages, any
error was harmless because, as explained below, the court properly granted
summary judgment against the constitutional and ADA claims regarding prison
conditions. See F ED. R. C IV. P. 61.
      Tuft asserts the court erred in granting summary judgment on his claims
regarding: a cross-sex strip search in 2005; the constitutionality of TDCJ policy
governing strip searches; deliberate indifference to his serious medical needs;
deliberate indifference to his health and safety; and violations of the ADA. A
summary judgment is reviewed de novo. Cousin v. Small, 325 F.3d 627, 637 (5th

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Cir. 2003). Summary judgment is proper “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”. F ED. R. C IV. P. 56(a).    If the movant demonstrates the
absence of a genuine issue of material fact, the burden shifts to the nonmovant
to provide specific facts showing the existence of a genuine issue for trial. F ED.
R. C IV . P. 56(c), (e). In reviewing summary judgment, “[w]e construe all facts
and inferences in the light most favorable to the nonmoving party”. Dillon v.
Rogers, 596 F.3d 260, 266 (5th Cir. 2010) (internal citation and quotation marks
omitted).
      Under § 1997e(a), a prisoner is prohibited from bringing a claim pursuant
to § 1983, “until such administrative remedies as are available are exhausted”.
The court held Tuft failed to exhaust his claims regarding: waiting in line and
in the cage for medication; treatment for hepatitis C; unsanitary prison
conditions; having to walk more than 50 yards to receive medication; the lack of
comfortable shirts; and failing to provide handicapped recreational facilities.
Tuft contends he exhausted these claims; however, we disagree.
      Tuft acknowledged he did not exhaust his claim that prison officials
violated the ADA by failing to provide handicapped recreational facilities. He
also failed to exhaust his Eighth Amendment claim he was denied medical care
when required to wait in line and then walk 50 yards for medication. See
Johnson v. Johnson, 385 F.3d 503, 517 (5th Cir. 2004). Although Tuft maintains
he filed grievances (that were not returned to him) regarding his other claims,
Tuft does not contend, and the record does not show, that he filed grievances for
these claims. See id. at 517-23. Because he failed to “pursue the grievance
remedy to conclusion”, Tuft failed to exhaust the claims.               Wright v.
Hollingsworth, 260 F.3d 357, 358 (5th Cir. 2001). In addition, the court properly
dismissed as unexhausted Tuft’s claim regarding having to walk 50 yards to the
medication line to the extent Tuft did not file administrative grievances for this
claim until after filing this § 1983 action. See Richardson v. Spurlock, 260 F.3d

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495, 499-500 (5th Cir. 2001). Nevertheless, even if Tuft satisfied the exhaustion
requirement, none of his claims constituted deliberate indifference of his medical
needs.
      Summary judgment was granted on the merits against Tuft’s remaining
ADA claims. Tuft failed to create a genuine issue of material fact with regard
to them. In his initial brief, Tuft does not brief any challenge to the summary-
judgment dismissal of these claims. Defendants contend, however, that the
dismissal of Tuft’s ADA claim regarding overcrowded showers was proper, and
Tuft challenges the dismissal of that claim in his reply brief. Accordingly,
although Tuft has waived any error with respect to the dismissal of other ADA
claims on the merits, see Hughes, 191 F.3d at 613, we have discretion to consider
Tuft’s contentions regarding overcrowded showers, see United States v.
Rodriguez, 602 F.3d 346, 360-61 (5th Cir. 2010).
      Despite complaining about such overcrowding, Tuft did not provide any
summary-judgment evidence showing he and other prisoners with disabilities
were treated differently from non-disabled prisoners. Therefore, even assuming
Tuft is a “qualified individual with a disability” and the provision of showers is
one of the “services, programs, or activities” of the TDCJ, and consistent with the
district court’s ruling, the crowded conditions of the showers did not constitute
an ADA violation because there is no evidence he was discriminated against in
his use of prison showers by reason of his disability. See Lightbourn v. County
of El Paso, 118 F.3d 421, 428 (5th Cir. 1997). In addition, Tuft failed to allege
the overcrowding had a greater effect in impairing his access to showers than it
did for non-disabled prisoners. See 28 C.F.R. § 35.160(b)(1).
      Tuft appeals the summary-judgment against his cross-sex strip-search
claim, in which a female guard allegedly participated, by maintaining:           it
violated his constitutional rights; and the prison policy governing such searches
is unconstitutional.   In Tuft’s verified amended complaint, he alleged Lt.
Gonzalez, a female corrections officer, participated in a strip search of Tuft and

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six other inmates on 26 February 2005. See Hart v. Hairston, 343 F.3d 762, 765
(5th Cir. 2003) (“On summary judgment, factual allegations set forth in a
verified complaint may be treated the same as when they are contained in an
affidavit.”). According to Tuft, all seven inmates were ordered into a prison
security office after being questioned about the source of cigarette smoke the
previous day; Lt. Gonzalez was sitting at a desk “within arms reach” of the
inmates; a male officer named Lt. Peterson and two other male officers were
present; Lt. Gonzalez ordered the prisoners to remove their clothing; two of the
male officers searched the prisoners’ clothing while Lt. Gonzalez “was directing
the search and participated in the visual cavity search by observing closely”; and
after the inmates told Lt. Gonzalez they had no information, she replied they
would be “subjected to these humiliating strip searches by her if [they] did not
snitch on the smokers”. Tuft supported his claims with affidavits from two of the
six other prisoners who were strip searched.
      Defendants admitted Tuft and other prisoners were strip searched but
submitted affidavits from Lts. Gonzalez and Peterson denying Lt. Gonzalez’
participation. In addition, defendants submitted a copy of the TDCJ policy
governing such searches, Administrative Directive 03.22 (AD 03.22), which
authorizes strip searches of male offenders by staff of the opposite sex, but “only
in extraordinary circumstances and when approved by a supervisor”. The policy
also states: “[i]f, under ordinary circumstances, a female officer is present in the
vicinity of a male offender being strip-searched, the officer’s duty is solely to
provide security for the searching officer”; and “[t]he female officer shall not
actively participate in the strip search” in such a case. Tuft maintained the
policy was unconstitutional with respect to strip searches, insofar as it
authorized Lt. Gonzalez to strip search him.
      We have recognized a prisoner: possesses a “constitutional right to bodily
privacy” that “is minimal, at best”, Oliver v. Scott, 276 F.3d 736, 745 (5th Cir.
2002); and “loses those rights that are necessarily sacrificed to legitimate

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penological needs”, Elliott v. Lynn, 38 F.3d 188, 190-91 (5th Cir. 1994).
Accordingly, we have held “searches or seizures conducted on prisoners must be
reasonable under all the facts and circumstances in which they are performed”;
however, “proving reasonableness is a light burden”, because “a prison
administrator’s decision and actions in the prison context are entitled to great
deference from the courts”. Id. at 191 (internal citation and quotation marks
omitted). Thus, “visual body cavity searches of prisoners can be constitutionally
reasonable”, but judging the reasonableness of such a search “‘requires a
balancing of the need for the particular search against the invasion of personal
rights that the search entails’” while “‘consider[ing] the scope of the particular
intrusion, the manner in which it is conducted, the justification for initiating it,
and the place in which it is conducted’”. Id. (quoting Bell v. Wolfish, 441 U.S.
520, 558-59 (1979)).
      Regarding prison regulations, we “give great deference to prison
administrators’ judgments regarding jail security” and will uphold such
regulation if it is “‘reasonably related to legitimate penological interests’”.
Oliver, 276 F.3d at 745 (quoting Turner v. Safley, 482 U.S. 78, 89 (1987)). Oliver
upheld the constitutionality of AD 03.22, at issue, regarding cross-sex strip
searches. Id. at 742-43. Although the regulation has been amended since our
court reviewed its constitutionality in Oliver, the current policy also “narrowly
cabins the scope” of such searches by permitting them only under “‘extraordinary
circumstances’”. Id. at 743 (quoting AD 03.22). A prisoner “might allege specific
facts that would make lower-level officers liable for any unconstitutional
application of the policy; the policy itself, however, is constitutional”. Id.
      The court properly ruled that Tuft’s claims for monetary damages against
all individual defendants, in their official capacities as employees of the State of
Texas, are barred by the Eleventh Amendment. See id. at 742. The Eleventh
Amendment also justifies the district court’s dismissal of claims against the
State of Texas and the TDCJ, “regardless of the relief sought”. See Puerto Rico

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Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 146 (1993); Talib
v. Gilley, 138 F.3d 211, 213 (5th Cir. 1998); see also Berry v. Brady, 192 F.3d 504,
507 (5th Cir. 1999) (“This court may affirm on any basis supported by the
record.”). The district court properly dismissed Tuft’s claims against former
TDCJ-ID Director Douglas Dretke, former Jester III Warden Brenda Chaney,
and Jester III Assistant Warden Richard Leal in their individual capacities, as
well as for vicarious or respondeat-superior liability. Tuft did not produce any
summary judgment evidence showing these TDCJ officials were personally
involved in the 2005 strip search or that they implemented a policy that was
itself a repudiation of constitutional rights and the moving force of the
constitutional violation. See Oliver, 276 F.3d at 742.
      The district court found Tuft’s claim, “that the sole purpose of the female
officer’s presence during the search was to sexually coerce and humiliate him
into disclosing information”, was “conclusory and unsupported”. Tuft, however,
supported his claim that Lt. Gonzalez participated in the search in order to
sexually coerce him into telling the officers who was smoking, with competent
summary-judgment evidence, including his verified pleadings and affidavits
from two other prisoners. “Any credibility determinations [the district court]
made between the officers’ and [Tuft’s] version of events [was] inappropriate for
summary judgment.” Tarver v. City of Edna, 410 F.3d 745, 753 (5th Cir. 2005).
“[C]onstru[ing] all facts and inferences in the light most favorable to the
nonmoving party”, Dillon, 596 F.3d at 266 (5th Cir. 2010) (internal citation and
quotation marks omitted), we vacate the district court’s partial dismissal of
Tuft’s claim against Lts. Gonzalez and Peterson in their individual capacities as
premature, and remand the claim for further proceedings, see Moore v. Carwell,
168 F.3d 234, 236-37 (5th Cir. 1999).
      The district court recognized that Tuft seeks nominal and punitive
damages, but found that analysis of defendants’ qualified immunity was
unnecessary because Tuft disclaimed any request for “monetary” damages. The

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court cited Tuft’s summary-judgment response, in which Tuft stated he did not
seek “damages for mental or emotional injury”. Tuft contends the district court
“erroneously and incorrectly” found he disclaimed “monetary damages”.
      In that regard, Tuft stated in his summary-judgment response that he
requested “nominal and punitive damages for this claim”. Liberally construing
his statement regarding damages for mental or emotional injury, he apparently
meant to disclaim only compensatory damages for the 2005 strip search, because
compensatory damages, apart from physical injury, are unavailable under
§ 1997e(e). See Oliver, 276 F.3d at 740 (holding pleadings filed by pro se litigant
entitled to liberal construction); see also Hutchins, 512 F.3d at 197-98 (holding
nominal and     punitive   damages available      for   constitutional violations
notwithstanding § 1997e(e)). To the extent the district court interpreted Tuft’s
summary-judgment response as disclaiming nominal and punitive damages, it
misread it. See Oliver, 276 F.3d at 740. As explained above, Tuft stated a
colorable claim for an unconstitutional cross-sex strip search in 2005 and
supported it with competent summary-judgment evidence. See Moore, 168 F.3d
at 236-37. Accordingly, on remand, the district court may wish to consider
whether Lts. Gonzalez and Peterson are entitled to qualified immunity from
Tuft’s claim for nominal and punitive damages.
      Tuft contends additional discovery was needed before the district court
ruled on the summary-judgment motion. The district court, however, granted
Tuft’s Rule 56(d) extension request, and Tuft has not provided any specific facts
to suggest additional discovery time would have enabled him to locate
information that would have successfully rebutted the summary-judgment
motion regarding the dispositive issues in his action. See Washington v. Allstate
Ins. Co., 901 F.2d 1281, 1285 (5th Cir. 1990).
      Tuft asserts the district court abused its discretion in denying his motion
for a temporary-restraining order and preliminary injunction to require prison
officials to allow Tuft to keep his medication on his person. Our court lacks

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jurisdiction over the denial of a temporary-restraining order, therefore, Tuft’s
appeal of that ruling is dismissed. See Faulder v. Johnson, 178 F.3d 741, 742
(5th Cir. 1999).
        A denial of a preliminary injunction is reviewed for abuse of discretion.
SEC v. First Fin. Group of Tex., 645 F.2d 429, 433 (5th Cir. 1981). “[A]ll
interlocutory orders are reviewable on appeal from the final decree.” Gloria S.S.
Co. v. Smith, 376 F.2d 46, 47 (1967); see also First Fin. Group, 645 F.2d at 433
(applying that principle to a preliminary injunction ruling). The appeal from the
denial of the preliminary injunction became moot when the district court granted
summary judgment against Tuft’s claim for injunctive relief on the same basis,
because an appeal is proper only from the final order addressing injunctive
relief. See First Fin. Group, 645 F.2d at 433. Accordingly, we “dismiss the
appeal . . . from the order of preliminary injunction”. Id.
        Moreover, as explained above, Tuft’s claims for injunctive relief became
moot when he was transferred from the Jester III Unit to another unit in 2009.
See Herman v. Holiday, 238 F.3d 660, 665 (5th Cir. 2001). In any event, the
court did not abuse its discretion in denying the preliminary injunction because
there was no substantial threat Tuft would suffer irreparable injury if the
injunction was not granted. For the same reason, we dismiss his challenge to
the denial of his motion for “reconsideration” of the denial of injunctive relief as
moot.
        DISMISSED in part; AFFIRMED in part; VACATED on the dismissal of
Tuft’s claims for nominal and punitive damages against Lts. Gonzalez and
Peterson in their individual capacities; REMANDED for further proceedings.




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