     Case: 16-30037   Document: 00514141288    Page: 1   Date Filed: 09/01/2017




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                               United States Court of Appeals
                                                                        Fifth Circuit
                                No. 16-30037                          FILED
                                                               September 1, 2017

FREDDIE R. LEWIS,                                                Lyle W. Cayce
                                                                      Clerk
             Plaintiff–Appellant,

v.

SECRETARY OF PUBLIC SAFETY AND CORRECTIONS; JACK GARNER;
TIMOTHY WILKINSON; JAY TIM MORGAN; CORRECTION
CORPORATION OF AMERICA SECURITY MILLIE; CORRECTION
CORPORATION OF AMERICA SECURITY SAWYER; CORRECTION
CORPORATION OF AMERICA SECURITY JOHNSON; SERGEANT
FLOWERS; CORRECTION CORPORATION OF AMERICA SECURITY
MAC; VIRGIL LUCAS; CORRECTION CORPORATION OF AMERICA;
WINN CORRECTIONAL CENTER; MRS. MELTON; THEODORE
JOHNSON; CAROL MELTON;


           Defendants–Appellees.




                Appeal from the United States District Court
                   for the Western District of Louisiana


Before SMITH, OWEN, and HIGGINSON, Circuit Judges.
PRISCILLA R. OWEN, Circuit Judge:
      Freddie R. Lewis brought suit under 42 U.S.C. § 1983 alleging he was
subjected to unconstitutional strip searches while incarcerated at the Winn
Correctional Center (WCC) in Winnfield, Louisiana.       The defendants, the
Secretary of the Louisiana Department of Public Safety and Corrections
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                                 No. 16-30037
(LaDPSC), Corrections Corporation of America (CCA), the President of CCA,
WCC, the former warden of WCC, the current warden of WCC, a number of
correctional and security officers, and the former security chief of WCC, moved
for summary judgment. The federal district court granted summary judgment
for the defendants. We affirm.
                                        I
      While incarcerated at WCC, Lewis worked at the WCC Garment Factory
owned and operated by the Louisiana Department of Corrections.               The
Garment Factory produces clothes and linens available for purchase by other
correctional facilities in Louisiana. The building contains sewing machines,
cutting tables, needles, scissors, clippers, nails, electrical cords, and other
items and machines.      The cutting room and the tool room are partially
secluded, and inmates are able to check out tools by placing their identification
card on the nail from which they took a certain tool. A culinary arts class and
a carpentry class for inmates are held in the same building.
      The Garment Factory is next to a sally-port, through which supply trucks
and civilian drivers enter. Although the drivers interact with inmates while
the trucks are unloaded, they are not searched when they enter the sally-port.
Trustee inmates, who are permitted to leave the prison and reenter through
the sally-port, also interact with the inmates working at the Garment Factory.
      The inmates working at the Garment Factory are subject to strip
searches at least twice a day, once before they reenter the main prison for lunch
and again before returning to the main prison at the end of the day. Inmates
are also subject to a strip search if a head count of the inmates at the prison,
which occurs several times each day, does not match the total number of
inmates assigned to the facility. When the count does not match, every inmate
must be quickly returned to his bed for a “bed count.”


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                                No. 16-30037
      The strip searches are conducted in a partially secluded room in the
Garment Factory in groups of approximately ten inmates.         The room has
windows next to the entry and exit doors for security reasons.         Female
corrections officers are not allowed in the search room. After entering the
room, inmates are instructed to disrobe and place their clothes on two long,
narrow tables in the middle of the room. Corrections officers then search the
clothes. The inmates are also instructed to spread their buttocks, lift their
genitals, and open their mouths for visual searches. The procedure was altered
at some point such that inmates were instructed to squat and cough, rather
than spread their buttocks and lift their genitals. Inmates are not physically
touched by the officers during this search. After the search, the inmates
partially dress in the search room, exit, and complete dressing outside the
room. They then walk through a metal detector one at a time. The metal
detector sometimes fails to detect small amounts of metal.
      Two Louisiana Department of Corrections employees managed the
Garment Factory and two WCC correctional officers, Carol Melton and Joshua
Clark, provided security during the relevant period. While searches were
conducted, Melton would remain in the hallway to ensure inmates did not
attempt to re-enter the Garment Factory. The instructors for the Culinary
Arts class and the Carpentry class, both male, received annual training on
strip search procedures and assisted in the searches. Clark stated in his
affidavit that he has personally found contraband during these searches,
including marijuana, clothes stolen from the Garment Factory, cell phones,
and money. He also stated that metal shanks have been discovered in the
Garment Factory.     The WCC Warden stated that the metal rods used to hold
spools of thread on the Garment Factory sewing machines were found in the
main prison, sharpened into shanks.


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                                       No. 16-30037
       Lewis brought suit under § 1983, alleging that the defendants violated
his Fourth Amendment rights by subjecting him to strip searches. He also
alleged that LaDPSC failed to monitor CCA, the private contractor that runs
WCC, adequately and that LaDPSC and CCA both failed to comply with their
own rules and regulations.            Lewis sought injunctive relief and punitive
damages. After his complaint was filed, Lewis was transferred from WCC to
participate in a work release program. The district court then denied and
dismissed as moot his claim for injunctive relief because he was no longer
housed at WCC. 1        It also dismissed Lewis’s claims based on the defendants’
failure to follow state policy because failure of state officials to follow a
particular policy does not give rise to federal constitutional claims. 2                  The
district court ordered service of process on Lewis’s remaining Fourth
Amendment claim. Lewis did not appeal this judgment.
       The district court subsequently dismissed the complaint against three of
the individual defendants because they were not served and did not make a
general appearance in the case.              The remaining defendants moved for
summary judgment, and the district court granted that motion.                          Lewis
appealed.
                                              II
       We review a grant of summary judgment de novo, using the same
standard       employed        by     the     district     court. 3         “The      Fourth



       1  See Herman v. Holiday, 238 F.3d 660, 665 (5th Cir. 2001) (determining that an
inmate’s transfer to a different unit rendered claims for declaratory and injunctive relief
relating to environmental conditions at the original unit moot).
        2 See Myers v. Klevenhagen, 97 F.3d 91, 94 (5th Cir. 1996) (per curiam) (recognizing

that “[o]ur case law is clear . . . that a prison official’s failure to follow the prison’s own
policies, procedures or regulations does not constitute a violation of due process, if
constitutional minima are nevertheless met”).
        3 Carnaby v. City of Houston, 636 F.3d 183, 187 (5th Cir. 2011).



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                                       No. 16-30037
Amendment . . . requires that ‘searches or seizures conducted on prisoners
must be reasonable under all the facts and circumstances in which they are
performed.’” 4    “When reviewing the reasonableness of searches, this court
strikes a balance ‘in favor of deference to prison authorities’ views of
institutional safety requirements against the admittedly legitimate claims of
inmates not to be searched in a humiliating and degrading manner.’” 5 “We
‘defer to the judgment of correctional officials unless the record contains
substantial evidence showing their policies are an unnecessary or unjustified
response to problems of jail security.’” 6
       Controlling the flow of contraband and ensuring institutional security
are legitimate penological objectives. 7 The affidavits of WCC prison officials
show that the search policies at issue were aimed at preventing the flow of
contraband from the outside truck drivers and others to inmates in the
Garment Factory and to the main prison. The search policies were also used
to prevent the removal of items from the Garment Factory that could be used
as weapons. Lewis has failed to rebut this reasonable justification for the strip
and visual body cavity searches and has therefore not shown that the district
court erred in granting summary judgment in favor of the defendants.




       4  Elliott v. Lynn, 38 F.3d 188, 191 (5th Cir. 1994) (quoting United States v. Lilly, 576
F.2d 1240, 1244 (5th Cir. 1978)).
        5 McCreary v. Richardson, 738 F.3d 651, 656-57 (5th Cir. 2013) (per curiam) (quoting

Elliott, 38 F.3d at 191).
        6Id. at 657 (quoting Florence v. Bd. of Chosen Freeholders, 566 U.S. 318, 322-23

(2012)).
        7 Bell v. Wolfish, 441 U.S. 520, 559-62 (1979); McCreary, 738 F.3d at 656 (“Prison

practices that impinge on prisoners’ constitutional rights are valid as long as they are
‘reasonably related to legitimate penological interests.’” (quoting Turner v. Safley, 482 U.S.
78, 89 (1987))).

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                                       No. 16-30037
       The LaDPSC and CCA internal rules and regulations do not alone create
federally-protected rights 8 and a prison official’s failure to follow prison policies
or regulations does not establish a violation of a constitutional right. 9 The
district court did not err in granting summary judgment as to these claims.
       Lewis raises a variety of discovery issues in his briefing before this court.
Lewis contends that the defendants failed to produce discovery material he
requested that would establish a material fact sufficient to survive summary
judgment. Lewis describes his discovery requests as, among others, requests
for documentation of LaDPSC’s and CCA’s failure to comply with the terms of
their contract, records demonstrating that Lewis was incarcerated at LaDPSC,
records showing LaDPSC’s legal authority to transport Lewis, evidence of
authorization from the Louisiana legislature for CCA to operate the Garment
Factory with LaDPSC employees, the blueprint of WCC showing that the
Garment Factory is part of the WCC compound, and the reports of the strip
searches required under prison policy. We conclude that even if the defendants
failed to produce this requested material, none of the discovery urged by Lewis
could create an issue of material fact precluding summary judgment for the
defendants. 10
       Finally, Lewis appeals the district court’s dismissal of his complaint
against three of the defendants under Federal Rule of Civil Procedure 4(m).



       8  See Sandin v. Conner, 515 U.S. 472, 487 (1995); Jackson v. Cain, 864 F.2d 1235,
1251-52 (5th Cir. 1989) (“A state’s failure to follow its own procedural regulations does not
establish a violation of due process, because ‘constitutional minima may nevertheless have
been met.’” (quoting Brown v. Texas A&M Univ., 804 F.2d 327, 335 (5th Cir. 1986))).
        9 Myers v. Klevenhagen, 97 F.3d 91, 94 (5th Cir. 1996) (per curiam); Hernandez v.

Estelle, 788 F.2d 1154, 1158 (5th Cir. 1986) (per curiam).
        10 FED. R. CIV. P. 56; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (“Only

disputes over facts that might affect the outcome of the suit under the governing law will
properly preclude the entry of summary judgment. Factual disputes that are irrelevant or
unnecessary will not be counted.”).

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                                          No. 16-30037
Our review of this claim is for abuse of discretion. 11                 Rule 4(m) requires
dismissal if a defendant is not served within 90 days after the complaint is
filed, unless the plaintiff shows good cause for the failure. 12                    After the
defendants refused service of process primarily because Lewis failed to include
first names on the summonses, the district court ordered defendants to provide
the full names of those individuals. The defendants complied. Lewis has not
presented any argument asserting good cause for his failure to serve the
defendants properly thereafter. 13             The district court’s dismissal of the
complaint against these three defendants was not an abuse of discretion. 14
                                      *        *         *
       The district court’s judgment is AFFIRMED.




       11  Lindsey v. United States R.R. Ret. Bd., 101 F.3d 444, 445 (5th Cir. 1996).
       12  FED. R. CIV. P. 4(m).
        13 Sys. Sign Supplies v. United States Dep’t of Justice, 903 F.2d 1011, 1013 (5th Cir.

1990) (per curiam) (“When service of process is challenged, the serving party bears the burden
of proving its validity or good cause for failure to effect timely service.”).
        14 See id. at 1013-14 (noting that “[p]ro se status does not excuse a litigant’s complete

failure to effect service” and that even though defendants had actual notice, the district court
did not abuse its discretion in dismissing the suit).
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