     Case: 10-10972     Document: 00511545152         Page: 1     Date Filed: 07/20/2011




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

                                                                            FILED
                                                                            July 20, 2011
                                     No. 10-10972
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

CHARLES CLAY WARNER, JR.,

                                                  Plaintiff-Appellant

v.

CURTIS JAMES WRIGHT; RICHARD G. LEAL; BONNIE YOUNG; JANAY B.
WILLIAMS; TEXAS DEPARTMENT OF CRIMINAL JUSTICE
INSTITUTIONAL DIVISION,

                                                  Defendants-Appellees


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 1:09-CV-124


Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges.
PER CURIAM:*
        Charles Clay Warner, Jr., Texas prisoner # 00502362, appeals the district
court’s judgment granting the defendants’ motion for summary judgment,
denying his counter motion for summary judgment, and dismissing his federal
constitutional claims under 42 U.S.C. § 1983 and his claims under the Religious
Land and Institutionalized Persons Act (RLUIPA). Warner has not addressed


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 10-10972

the district court’s decision to decline supplemental jurisdiction over his state
law claims and to remand those claims to the state court.           Thus, he has
abandoned those claims. Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
      Summary judgment is appropriate if the record discloses “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). A genuine dispute exists if “the
evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
      The record does not disclose a genuine dispute as to a material fact
regarding the defendants’ assertion of absolute immunity from damages under
the Eleventh Amendment Thus, Warner is limited to obtaining only prospective
injunctive relief if he proves his claims against TDCJ and the defendants in their
official capacities. See Frew v. Hawkins, 540 U.S. 431, 437 (2004).
      Nor does the record reveal a genuine dispute as to a material fact
regarding the defendants’ entitlement to qualified immunity in their individual
capacities. When a defendant pleads qualified immunity as a defense, the court
must determine whether the facts alleged by the plaintiff set forth a violation of
a constitutional right and whether the constitutional right was clearly
established at the time of the alleged misconduct. See Ontiveros v. City of
Rosenberg, 564 F.3d 379, 382 (5th Cir. 2009).
      In the absence of alleging a physical injury as a result of the alleged
constitutional violations, Warner is not entitled to compensatory damages under
§ 1983 and RLUIPA. See 42 U.S.C. § 1997e(e); Geiger v. Jowers, 404 F.3d 371,
375 (5th Cir. 2005). In order to obtain injunctive relief or punitive or nominal
damages under RLUIPA, Warner must have shown that “the challenged
government action ‘substantially burden[ed]’ [his] ‘religious exercise.’” Mayfield
v. Texas Dept. of Criminal Justice, 529 F.3d 599, 613 (5th Cir. 2008). To recover
under § 1983 for a violation of his right to exercise his religious freedom under
the First Amendment, there must be a showing that the restriction was not

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reasonably related to legitimate penological interests. Turner v. Safely, 482 U.S.
78, 89 (1987).
      Wright argues that he was entitled to share Islamic materials with other
persons based on a provision in the consent decree issued in Brown v. Beto, No.
4:74-CV-069 (S.D. Tex. 1977).         The defendants contend that property
transactions between offenders are prohibited under the prison’s administrative
directive, and this regulation authorized the confiscation of Warner’s religious
book from another offender’s cell.
      In support of their motion, the defendants presented Officer Wright’s
affidavit that reflected that Warner’s book was confiscated based on the prison
policy prohibiting transfers of property. Wright explained that in response to
Warner’s reliance on the consent decree, he confirmed that the property rule was
applicable to Islamic religious materials. Warner’s assertion that the consent
decree authorized him to transfer the book was also contradicted by the evidence
that the Muslim chaplain agreed that offenders could not transfer their religious
books to another offender to bring back to his cell.        The defendants also
presented uncontested evidence that inmates are allowed to share religious
materials during religious services and in the day room. The record does not
reveal a genuine dispute as to the material fact that there are alternative
reasonable means of practicing the Islamic ritual of Zakat made available by the
prison. See Adkins v. Kaspar, 393 F.3d 559, 564 (5th Cir. 2004).
      Thus, Warner has not provided evidence showing that the defendants
placed a substantial burden on his ability to practice or to propagate his religion
or that the prison policies are implemented in an unconstitutional manner. See
Mayfield, 529 F.3d at 613. Warner has not provided evidence to rebut the
defendants’ evidence that the restriction placed on property transfers are
related to a compelling and legitimate interests of prison officers to preserve
order and security in the prison. See Turner, 482 U.S. at 89. Warner’s claim
that TDCJ failed to train its employees also fails as the record reveals no

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genuine factual dispute fact regarding the constitutionality of the policy
resulting in the confiscation of the book. See Zarnow v. City of Wichita Falls,
Tex., 614 F.3d 161, 170 (5th Cir. 2010), cert. denied, 79 U.S.L.W. 3727 (U.S. June
27, 2011). Thus, the defendants were entitled to qualified immunity from
liability arising from Warner’s claims regarding his religious freedom.
Ontiveros, 564 F.3d at 382.
      Warner complains that he was deprived of his personal property without
due process because there was no hearing conducted on the legality of the
confiscation of his book and that the lack of due process was the result of TDCJ’s
failure to properly train its employees. A receipt of notice of the basis for the
confiscation of the property action and a fair opportunity to rebut the allegations
of wrongdoing are “the most important procedural mechanisms for purposes of
avoiding erroneous deprivations.” Wilkinson v. Austin, 545 U.S. 209, 226 (2005).
      Warner completed the Texas prison’s two-step grievance procedures and
filed several other grievances and requests. He was provided with responses
explaining the grounds for the confiscation of the book and the reasons why his
subsequent grievances were redundant or improperly filed. Warner’s position
regarding the application of the consent decree was made clear in his grievances,
and he did not show that he could have presented any additional evidence at a
hearing that would have resulted in a change in the application of the prison
policies or the return of his book. He has not refuted the State’s contention that
the book is still in the possession of the Robertson Unit property room and can
be mailed to an address of his choosing at his expense. The record does not show
a genuine material factual dispute regarding the adequacy of the due process
which Warner received. Nor did he show a due process violation arising from
TDCJ’s failure to train its employees. Insofar as Warner complains about the
manner in which Officer Young and Assistant Warden Leal processed his
grievances, he has failed to allege a constitutional violation. See Geiger, 404
F.3d at 373-74. In light of the absence of evidence of a constitutional violation,

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the defendants were entitled to qualified immunity from liability based on a due
process violation. Ontiveros, 564 F.3d at 382.
      The district court did not err in granting the defendants’ motion for
summary judgment, denying Warner’s counter-motion for summary judgement,
and in dismissing Warner’s federal claims. Nor did Warner show that the
district court erred in choosing not to exercise its supplemental jurisdiction over
his state law claims and in remanding the case to the state court. The judgment
is AFFIRMED.




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