     Case: 10-40126 Document: 00511278948 Page: 1 Date Filed: 10/29/2010




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

                                                 FILED
                                                                          October 29, 2010
                                     No. 10-40126
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

KENNETH A. LOCKAMY,

                                                   Plaintiff-Appellant

v.

CHAQUITA DUNBAR; TAMMY SHARP; UNIDENTIFIED OFFICERS; JOHN
PRYOR, Individually and Officially,

                                                   Defendants-Appellees


                    Appeal from the United States District Court
                         for the Eastern District of Texas
                              USDC No. 5:08-CV-150


Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Kenneth A. Lockamy, Texas prisoner # 1313595, appeals the district
court’s grant of the defendants’ summary judgment in his 42 U.S.C. § 1983 civil
suit in which he claimed that prison officials had violated his due process and
constitutional rights by (1) denying him access to the courts, (2) engaging in a
campaign of retaliation, (3) interfering with his rights under the Religious Land
Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc et seq., and


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-40126 Document: 00511278948 Page: 2 Date Filed: 10/29/2010

                                   No. 10-40126

(4) refusing to allow an appeal after the mailing of correspondence was denied.
On appeal, Lockamy also argues that the district court erred in concluding that
the defendants were entitled to qualified immunity and in denying his motion
for the appointment of counsel.
      A district court’s grant of summary judgment is reviewed de novo.
Berquist v. Washington Mut. Bank, 500 F.3d 344, 348 (5th Cir. 2007). This court
views all facts and evidence in the light most favorable to the non-moving party.
United Fire & Cas. Co. v. Hixson Bros, 456 F.3d 283, 285 (5th Cir. 2006). Even
if this court disagrees with the reasons given by the district court to support
summary judgment, this court “may affirm the district court’s ruling on any
grounds supported by the record.” Berquist, 500 F.3d at 349.
      Lockamy cannot demonstrate that the district court abused its discretion
in allowing the defendants an extension of time to file their summary judgment
motion because he does not even allege that he was prejudiced in any way by the
modification in schedule. See Huval v. Offshore Pipelines, Inc., 86 F.3d 454, 458
(5th Cir. 1996). Moreover, Lockamy failed to even request a Federal Rule of
Civil Procedure 56(f) continuance for further discovery in the district court and
did not provide the district court with specific facts explaining his inability to
make a substantive response to the defendants’ summary judgment motion and
demonstrating how additional time for discovery would have allowed him to
present a genuine issue of material fact. Washington v. Allstate Ins. Co., 901
F.2d 1281, 1285 (5th Cir. 1990).
      To prevail on a denial of access to the courts claim, the prisoner must show
that he was prejudiced by the alleged violation. Lewis v. Casey, 518 U.S. 343,
351-52 (1996). In order to demonstrate prejudice, a prisoner must show that his
ability to pursue a nonfrivolous legal claim was hindered by the actions of the
defendants. Christopher v. Harbury, 536 U.S. 403, 415 (2002). Even if the most
egregious of Lockamy’s allegations are true, he provides no concrete evidence to
demonstrate that defendants’ actions caused him prejudice by hindering the

                                        2
    Case: 10-40126 Document: 00511278948 Page: 3 Date Filed: 10/29/2010

                                  No. 10-40126

progression of his current cases or the pursuit of future litigation, particularly
in light of the fact that he had two other cases pending at the same time as this
appeal. See Lewis, 518 U.S. at 349.

      Under the RLUIPA, the Government is prohibited from imposing a
substantial burden on a prisoner’s exercise of religious freedom unless there is
a compelling governmental interest and the burden is the least restrictive means
of furthering that interest. § 2000cc-1. Therefore, in order to make a claim
under RLUIPA, Lockamy must show that the prison’s regulations imposed a
substantial burden on his exercise of religious activity. Adkins v. Kaspar, 393
F.3d 559, 564-65 (5th Cir. 2004). Lockamy argues that defendants violated his
right to the free exercise of religion when they refused to mail pages removed
from a religious magazine and labeled them as contraband. However, according
to The Texas Department of Criminal Justice Offender Orientation Handbook,
“contraband” is “any item altered from its original condition.”          Lockamy
admitted that the pages had been altered because they were removed from a
pamphlet and had been written on.

      Although the RLUIPA imposes a strict scrutiny of prison regulations,
lawmakers were mindful that discipline, order, safety, and security are urgent
in penal institutions and anticipated that courts would apply the RLUIPA test
“with due deference to the experience and expertise of prison and jail
administrators in establishing necessary regulations and procedures to maintain
good order, security and discipline, consistent with consideration of costs and
limited resources.”   Cutter v. Wilkinson, 544 U.S. 709, 722-23 (2005).        The
prison’s policy on rejecting the mailing of contraband is related to the legitimate
penological interests of order, discipline, and security. Lockamy does not allege
that prison’s policies prevented him from practicing his faith or forced him to
modify his religious activities. Accordingly he has not made a viable claim that




                                        3
    Case: 10-40126 Document: 00511278948 Page: 4 Date Filed: 10/29/2010

                                  No. 10-40126

the defendants violated his First Amendment right to the free exercise of
religion. See Adkins, 393 F.3d at 564-65.

      Lockamy’s assertion that the defendants violated his due process rights by
refusing to initiate an appeals process regarding the rejection of mail is equally
without merit. According to the Offender Orientation Handbook, complaints of
rejected mail are non-grievable and must be sent for review by the Director’s
Review Committee (DRC). Lockamy does not allege that he even attempted to
initiate an appeals process by following the rules and sending a written notice
to the DRC.

      To state a retaliation claim, “a prisoner must allege (1) a specific
constitutional right, (2) the defendant’s intent to retaliate against the prisoner
for his or her exercise of that right, (3) a retaliatory adverse act, and
(4) causation.” Jones v. Greninger, 188 F.3d 322, 324-25 (5th Cir. 1999). “Filing
grievances and otherwise complaining about the conduct of correctional officers
through proper channels are constitutionally protected activities, and prison
officials may not retaliate against inmates for engaging in such protected
activities.” Reese v. Skinner, 322 F. App’x 381, 383 (5th Cir. 2009) (citing Morris
v. Powell, 449 F.3d 682, 684 (5th Cir. 2006)). After showing invocation of a
constitutional right, the prisoner must “produce direct evidence of motivation”
or “allege a chronology of events from which retaliation may plausibly be
inferred.” Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995) (internal quotation
marks and citations omitted). Furthermore, the retaliatory adverse act must be
more than de minimis to state a viable retaliation claim; the act must be
“capable of deterring a person of ordinary firmness from further exercising his
constitutional rights.” Morris, 449 F.3d at 686.

      A showing of retaliation places a heavy burden on prisoners, and mere
conclusory allegations are not sufficient. Woods, 60 F.3d at 1166. Lockamy
cannot meet the high burden. Lockamy does not provide this court with any


                                        4
    Case: 10-40126 Document: 00511278948 Page: 5 Date Filed: 10/29/2010

                                   No. 10-40126

evidence to suggest that any retaliatory acts were more than inconsequential or
de minimis, and any such acts have not prevented Lockamy from exercising his
constitutional rights. See Morris, 449 F.3d at 685-86.

      In the summary judgment context, a government official need only plead
qualified immunity, which then shifts the burden to the plaintiff. Michalik v.
Hermann, 422 F.3d 252, 262 (5th Cir. 2005). The plaintiff must rebut the
defense by establishing that the official’s allegedly wrongful conduct violated
clearly established law and that genuine issues of material fact exist regarding
the reasonableness of the official’s conduct. Id. Lockamy has not shown that the
defendants violated his constitutional rights, and he does not discuss which laws
the defendants allegedly unreasonably ignored. He relies on theory, speculation,
and mere conclusory allegations, which are not sufficient to discharge his burden
of overcoming the defendant’s defense of qualified immunity. See id.

      A district court may appoint counsel in a § 1983 case if exceptional
circumstances exist. Branch v. Cole, 686 F.2d 264, 266 (5th Cir. 1982). The
existence of exceptional circumstances depends upon the type and complexity of
the case and the abilities of the person litigating the case. Id. This court reviews
a district court’s denial of a motion for appointment of counsel under the abuse
of discretion standard. Cupit v. Jones, 835 F.2d 82, 86 (5th Cir. 1987) (citations
omitted).

      The denial of Lockamy’s appointment of counsel motion was not an abuse
of discretion. Lockamy’s constitutional issues are not particularly complex, and
Lockamy has proven himself more than capable of competently proceeding
without the assistance of counsel. See id. Accordingly, the judgment of the
district court is AFFIRMED.




                                         5
