                    REVISED JUNE 24, 2010
           IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT
                                                                        United States Court of Appeals
                                                                                 Fifth Circuit

                                                                             FILED
                                       No. 09-30559                         June 21, 2010

                                                                           Lyle W. Cayce
                                                                                Clerk
JAMES ALLEN TERRY, JR.

                                                  Plaintiff-Appellee
v.

CORNEL H. HUBERT, Warden of Elayn Hunt Correctional Center

                                                  Defendant-Appellant



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



Before JONES, Chief Judge, and HIGGINBOTHAM and ELROD, Circuit
Judges.

EDITH H. JONES, Chief Judge:
       In the aftermath of Hurricane Katrina, Appellee James Allen Terry, Jr.,
was arrested for looting and detained at Elayn Hunt Correctional Center
(EHCC) for approximately seven months. Upon his release, Terry brought a
42 U.S.C. § 1983 action against EHCC’s Warden, Cornel Hubert, alleging
violations of his First Amendment right to access the courts and Fourteenth
Amendment right to due process.1 The magistrate judge denied the Warden’s


       1
        Terry also sued other defendants and alleged additional constitutional violations, but
these other parties and claims were dismissed and are not before us on appeal.
                                           No. 09-30559

motion for summary judgment, finding issues of fact as to whether the Warden
was entitled to qualified immunity. Because the undisputed evidence shows that
the Warden neither violated Terry’s right of access to the courts nor violated any
clearly established law in connection with the detention, he was entitled to
immunity from suit. We REVERSE and REMAND for entry of judgment in the
Warden’s favor.
                                         I. Background
         Less than two weeks after Hurricane Katrina flooded New Orleans, Terry
was arrested there and transported to EHCC in St. Gabriel, Louisiana. Three
days later, on September 14, 2005, Terry appeared in makeshift quarters at
EHCC before Orleans Parish Criminal District Court Judge Raymond Bigelow.
Bond was set at $200,000 for charges of Looting and Possession of a Controlled
Dangerous Substance While in Possession of a Weapon.2 Judge Bigelow also set
a Rule to Show Cause hearing for October 14, 2005, but this hearing did not
occur.
         Ordinarily, the state must file an indictment or bill of information within
sixty days of arrest if the defendant is being held for a felony. LA. CODE CRIM.
PROC. ANN. art. 701.3 Due to the chaos following Hurricane Katrina, however,
the Supreme Court of Louisiana extended the indictment/information deadline
in Class II and III felony cases to 5:00 p.m. on January 6, 2006.                             See
Kimbrough v. Cooper, 915 So. 2d 344, 345 (La. 2005). This deadline passed

         2
             Terry’s bond was never paid, and he remained in detention.
         3
             Article 701 provides, in pertinent part:

“(1)(a)When the defendant is continued in custody subsequent to an arrest, an indictment or
information shall be filed . . . within sixty days of the arrest if the defendant is being held for
a felony. . . .

Failure to institute prosecution as provided in Subparagraph (1) shall result in release of the
defendant if, after contradictory hearing with the district attorney, just cause for the failure
is not shown. . . .”

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                                  No. 09-30559

without Terry’s indictment, prompting an exchange of letters among Terry, his
mother, and Warden Hubert.
      Terry first wrote the Warden on January 6, 2006, and requested
information as to why he had not been released, despite having not been indicted
by the new deadline. On January 11, the Warden replied that he understood
Terry’s frustration but could not release him until notified by the courts.
      On January 26, Terry’s mother wrote the Warden to tell him that Terry
had not been arraigned or seen an attorney and asked him to provide her with
information about how to secure Terry’s release. On February 6, the Warden
replied that Orleans Parish officials had authority over Terry’s charges,
arraignment, and release and that he could not release Terry.
      On February 4, Terry wrote the Warden again to obtain addresses for
Louisiana Governor Blanco and New Orleans Mayor Nagin, and on February 6,
Terry filed another written request for the addresses or phone numbers of the
courts that could notify the Warden that Terry was to be released.            On
February 16, the Warden replied that the sheriff’s office, rather than the courts,
would notify him to release Terry and that Terry should contact inmate counsel
about obtaining addresses.
      On March 9, Terry wrote the Warden asking that someone look into why
the law library had not responded to his two requests for a writ of habeas corpus
form and consultation with inmate counsel. The Warden referred Terry’s
complaint to Deputy Warden Marianna Leger, and Terry saw inmate counsel on
or around March 10.
      Terry was released on April 4, 2006, pursuant to an order of the Orleans
Parish Criminal District Court dismissing all charges. He then filed this § 1983
action against the Warden. Terry contends that the Warden violated his clearly
established First Amendment right of access to the courts by denying him access
to a law library, access to inmate counsel during his first three months of


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detention, access to competent inmate counsel thereafter, and basic information
concerning whom to contact about his detention. He contends that the Warden’s
actions were objectively unreasonable in light of Terry’s multiple requests for
information and complaint that he could not obtain necessary legal forms or see
inmate counsel. Terry also alleges that the Warden violated his Fourteenth
Amendment due process right to be free from unlawful incarceration because
Terry was detained “without charges.” He argues that the Warden lacked
authority to detain Terry but did not investigate Terry’s case despite repeated
complaints, thus engaging in objectively unreasonable conduct.
      Denying qualified immunity and summary judgment to the Warden on
grounds that are unclear, at best, the magistrate judge identified “genuine issues
of material fact” as to whether the Warden believed “in good faith” that Terry
had access to legal forms, inmate counsel, and other necessary information
during his detention and whether the Warden believed “in good faith” that he
had authority to detain Terry for almost seven months. The Warden appeals.
                II. Jurisdiction and Standard of Review
      “The doctrine of qualified immunity protects government officials ‘from
liability for civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would
have known.’” Pearson v. Callahan, — U.S. —, 129 S. Ct. 808, 815 (2009)
(citation omitted). The qualified immunity inquiry thus involves two prongs that
must be answered affirmatively for an official to face liability: (1) whether the
defendant’s conduct violated a constitutional right, and (2) whether the
defendant’s conduct was objectively unreasonable in light of clearly established
law at the time of the violation. Id. at 816. A court can begin its assessment
with either prong. Id. at 818 (overruling in part Saucier v. Katz, 533 U.S. 194,
121 S. Ct. 2151 (2001)).



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         The denial of a motion for summary judgment asserting the defense of
qualified immunity is an immediately appealable collateral order “‘to the extent
that it turns on an issue of law.’” Manis v. Lawson, 585 F.3d 839, 842 (5th Cir.
2009).    Although this court lacks jurisdiction to review a district court’s
determination that a genuine factual dispute exists, we may review de novo the
materiality of disputed facts to the qualified immunity determination. Id. at
842–43. The plaintiff’s evidentiary assertions—but not mere allegations—are
taken as true in the court’s evaluation of qualified immunity. Id. at 843.
                                 III. Analysis
A. First Amendment Claim
      Prisoners have a constitutional right of access to the courts that is
“adequate, effective, and meaningful.” Bounds v. United States, 430 U.S. 817,
822, 97 S. Ct. 1491, 1494 (1977). The right of access to the courts, however,
“guarantees no particular methodology but rather the conferral of a
capability—the capability of bringing contemplated challenges to sentences or
conditions of confinement before the courts.” Lewis v. Casey, 518 U.S. 343, 354,
116 S. Ct. 2174, 2182 (1996). The Supreme Court has stated:
      [P]rison law libraries and legal assistance programs are not ends in
      themselves, but only the means for ensuring ‘a reasonably adequate
      opportunity to present claimed violations of fundamental
      constitutional rights to the courts.’ Because Bounds did not create
      an abstract, freestanding right to a law library or legal assistance,
      an inmate cannot establish relevant actual injury simply by
      establishing that his prison’s law library or legal assistance program
      is subpar in some theoretical sense. . . . [T]he inmate therefore
      must go one step further and demonstrate that the alleged
      shortcomings in the library or legal assistance program hindered his
      efforts to pursue a legal claim.

Id. at 351, 116 S. Ct. at 2180 (emphasis added). See also Brewer v. Wilkinson,
3 F.3d 816, 821 (5th Cir. 1993) (“the Supreme Court has not extended [the right
of access] to encompass more than the ability of an inmate to prepare and

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transmit a necessary legal document to a court”); Mann v. Smith, 796 F.2d 79,
84 (5th Cir. 1986) (“the right of access includes the ability to file a legally
sufficient claim”) (citation omitted).
      Here, Terry had the ability to file a legally sufficient claim challenging his
confinement. First, he had access to writing and mailing materials as well as
contact information, which he employed to write letters to numerous state
officials, including the courts. Terry (as well as his mother) was told by prison
officials that the jurisdiction that arrested him governed his release, and he
knew he had been arrested in Orleans Parish and appeared before an Orleans
Parish judge for a bond hearing. Moreover, within one day of his request to the
Warden for help from inmate counsel, Terry’s request was satisfied.
      Second, Terry knew what to write in order to make out a legally sufficient
claim. It is undisputed that a felony detainee who pursued a writ of habeas
corpus based upon his prolonged detention could secure release. Terry’s letters
to the Warden indicate that he knew that he had been held beyond the extended
statutory deadline and needed to petition for a writ of habeas corpus. Taking
Terry’s allegations as true, that he never acquired a habeas form from the law
library is immaterial because “a court may liberally construe a pro se petitioner’s
pleading and treat it as a habeas corpus petition.” Davis v. Fechtel, 150 F.3d
486, 487 (5th Cir. 1998). “This is not a case where ‘a complaint [Terry] prepared
was dismissed for failure to satisfy some technical requirement which, because
of deficiencies in the prison’s legal assistance facilities, he could not have
known.’” Lewis, 518 U.S. at 351.
      In light of these facts, Terry’s allegations challenging the adequacy of
inmate counsel and the Warden’s response to Terry’s requests are immaterial,
because he was not prejudiced in his ability to file a legally sufficient claim. The
Warden is entitled to qualified immunity because he did not violate Terry’s right
of access to the courts.

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B. Fourteenth Amendment Claim
      Terry’s due process claim is premised upon the allegation that he was
“never charged with a crime” but was nonetheless detained for almost seven
months. The magistrate judge likewise described Terry’s detention as occurring
“without a court order, without a charge, [and] without a hearing.” These
characterizations are inaccurate. Three days after his arrest, Terry appeared
before an Orleans Parish Criminal District Court judge. He was represented by
court-appointed counsel. The court set $100,000 bond on each of two charges.
      Although he was not timely released pursuant to the normal operation of
state law (Article 701, supra n.3), the custody of those charged with crimes was
hardly “normal” in the hurricane’s devastating aftermath. The operation of
Article 701 was suspended for several months by order of the Louisiana Supreme
Court. Further, this court can take judicial notice of the damages to facilities,
personnel shortages, and lack of coordination plaguing the provision of all public
services in the area well into 2006.
      The question for immunity purposes thus becomes whether, under these
unique conditions, the Warden can be personally liable for Terry’s extended
detention. To ask this question is to answer it. Though “the very action in
question” need not previously have been held unlawful for a constitutional
violation to be clearly established, the “unlawfulness must be apparent” and the
“contours of the right must be sufficiently clear that a reasonable official would
understand that what he is doing violates that right.” Anderson v. Creighton,
483 U.S. 635, 640, 107 S. Ct. 3034, 3039 (1987). Based on these principles, the
Warden’s conduct did not violate clearly established law.
      The Supreme Court has stated that a detainee “becomes held pursuant to
[legal] process—when, for example, he is bound over by a magistrate . . . .”
Wallace v. Kato, 549 U.S. 384, 389, 127 S. Ct. 1091, 1096 (2007) (emphasis in
original). Terry was unquestionably afforded a bond hearing on his charges, so

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the Warden could reasonably have concluded that Terry’s detention was
pursuant to process.
      Further, even if the conditions of Terry’s detention were otherwise normal,
we cannot say that the unlawfulness of the Warden’s actions was “apparent”
from this circuit’s prior decisions. This court has held only that the due process
clause is implicated in cases of continued incarceration without an initial
appearance, or after charges are dropped, or beyond the term of a court-ordered
sentence, or in the face of exculpatory evidence. See, e.g., Jones v. City of
Jackson, 203 F.3d 875, 880–81 (5th Cir. 2000); Brooks v. George County, Miss.,
84 F.3d 157, 166 (5th Cir. 1996); Douhit v. Jones, 619 F.2d 527, 532 (5th Cir.
1980); Sanders v. English, 950 F.2d 1152, 1159 (5th Cir. 1992). These cases,
however, are context-specific. This court has never considered a situation in
which a defendant is promptly afforded counsel and a bond hearing, but is then
held beyond the deadline for formal indictment.
      Finally, this court has never considered, in such a situation, the duty of a
prison warden forced to house pretrial detainees within a legal system thrown
into disarray by natural disaster. We cannot ignore the implication favoring
immunity in the context in which the normal operating rules must yield, because
of necessity, to improvisation.
      In light of the state of the law and the surrounding circumstances at the
time of Terry’s incarceration, a due process violation would not have been
sufficiently clear to a reasonable public officer, and thus the Warden is entitled
to qualified immunity.
                                  Conclusion
      For the foregoing reasons, we REVERSE and REMAND for entry of
judgment in favor of the Appellant.




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