     Case: 15-40799       Document: 00513585319         Page: 1     Date Filed: 07/11/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                              United States Court of Appeals
                                                                                       Fifth Circuit
                                     No. 15-40799                                    FILED
                                   Summary Calendar                              July 11, 2016
                                                                                Lyle W. Cayce
                                                                                     Clerk
JEFF BURKS; MELYNDA BURKS,

                                                  Plaintiffs-Appellants

v.

SHERIFF JEFF PRICE; RICKEY TURNER; DAVID BROWN; PAT BRACK;
JOHN DOES 1-10,

                                                  Defendants-Appellees


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 6:13-CV-746


Before BARKSDALE, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       In challenging the adverse summary judgment for their 42 U.S.C. § 1983
action, Jeff and Melynda Burks claim Rusk County Sheriff Jeff Price, City of
Henderson Municipal Judge Rickey Turner, Henderson City Attorney David
Brown, Henderson Mayor Pat Brack, as well as “John Does 1-10”, in their
individual and official capacities, violated their constitutional rights to due



       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 15-40799

process and equal protection by imprisoning them for failure to pay fines,
without first determining their ability to pay.
      A summary judgment is reviewed de novo, applying the same standard
as the district court. E.g., Estate of Henson v. Wichita Cty., 795 F.3d 456, 461
(5th Cir. 2015). And, to prevail on a claim pursuant to § 1983, a plaintiff must
show: a violation of the Constitution or of federal law; and the violation was
committed while acting under color of state law. E.g., Brown v. Miller, 519
F.3d 231, 236 (5th Cir. 2008). In that regard, “the State cannot ‘impose a fine
as a sentence and then automatically convert it into a jail term solely because
the defendant is indigent and cannot forthwith pay the fine in full’”. Bearden
v. Georgia, 461 U.S. 660, 667 (1983) (alterations omitted) (emphasis added)
(quoting Tate v. Short, 401 U.S. 395, 398 (1971)).
      The court did not err in granting summary judgment regarding Jeff
Burks’ nine-day confinement in September 2013, after he failed to satisfy the
fines by performing community service as agreed.            In a hearing with the
municipal-court judge, Jeff Burks admitted he did not perform the service
hours in the previous six years, but he could have done so had he put forth the
effort. Although the hearing took place in chambers and did not involve a
written determination, it satisfied constitutional requirements. See Giovanni
v. Lynn, 48 F.3d 908, 912 (5th Cir. 1995); Bearden, 461 U.S. at 667–72.
Accordingly, summary judgment was properly granted on those claims. See
Villanueva v. McInnis, 723 F.2d 414, 418 (5th Cir. 1984); Kentucky v. Graham,
473 U.S. 159, 166 (1985).      Because the Burkses’ contentions the other
defendants wrongfully confined Jeff Burks rely on the judge’s claimed
unconstitutional confinement order, those claims also fail.
      The Burkses fail to brief, and have therefore abandoned, any claim
regarding Melynda Burks’ arrest and confinement in September 2013. See



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                                  No. 15-40799

United States v. Scroggins, 599 F.3d 433, 446–47 (5th Cir. 2010). Instead, they
address her subsequent six-day confinement in October 2014. The district
court ruled the justice of the peace involved in the October 2014 incident was
“not a party” to this action, and the Burkses failed to “state how any of the
named Defendants were or should be liable for this confinement”. The Burkses
do not address that reasoning, but instead complain Melynda Burks’ October
2014 confinement occurred without a hearing. Because that claim was not
included in their original or amended complaints, it “is not properly before the
court”. Cutrera v. Bd. of Supervisors of La. State Univ., 429 F.3d 108, 113 (5th
Cir. 2005). Assuming, arguendo, the claim was properly raised, the Burkses
fail to identify any evidence establishing a genuine dispute of material fact for
whether a hearing occurred, an element essential to their claim of
constitutional deprivation. See Graham, 473 U.S. at 166; Brown, 519 F.3d at
236.     Accordingly, they fail to show any error in the summary judgment
regarding Melynda Burks’ confinement.
        Because the Burkses fail to show the district court erred regarding their
claims of constitutional deprivation, we need not address defendants’
immunity-defense assertions. See Pearson v. Callahan, 555 U.S. 223, 236
(2009); Quives v. Campbell, 934 F.2d 668, 669 (5th Cir. 1991). The Burkses
also fail to address the denial of declaratory relief or their other theories of
liability; therefore, those claims are abandoned. See Scroggins, 599 F.3d at
446–47.
        AFFIRMED.




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