    Case: 17-11230   Document: 00514812117    Page: 1   Date Filed: 01/28/2019




         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT
                                                           United States Court of Appeals
                                                                    Fifth Circuit
                               No. 17-11230                       FILED
                                                           January 28, 2019
                                                             Lyle W. Cayce
                                                                  Clerk

MICHAEL JOSEPH DEMARCO, JR.,

                                        Plaintiff–Appellant,

versus

LORIE DAVIS, Director,
 Texas Department of Criminal Justice, Correctional Institutions Division;
JEREMY J. BYNUM, Officer; JOSEPH C. BOYLE, Disciplinary Captain,

                                        Defendants–Appellees.




               Appeal from the United States District Court
                    for the Northern District of Texas




Before SMITH, DUNCAN, and ENGELHARDT, Circuit Judges.
JERRY E. SMITH, Circuit Judge:

     Michael DeMarco, Jr., an inmate at the James V. Allred Unit of the
Texas Department of Criminal Justice (“TDCJ”), brought suit under 28 U.S.C.
§ 1983 against Jeremy Bynum, an officer at the Allred Unit; Joseph Boyle, a
disciplinary captain; and William Stephens, the former director of the TDCJ.
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                                   No. 17-11230
The district court dismissed the complaint with prejudice under 28 U.S.C.
§ 1915A(b)(1) for failure to state a claim upon which relief may be granted. We
affirm in part and reverse in part and remand.

                                         I.
      Bynum allegedly confiscated certain personal property from DeMarco’s
cell. At a disciplinary proceeding, DeMarco was found guilty of threatening
Bynum and was placed in solitary confinement. DeMarco sued, claiming that
the seizure of his legal and religious materials had occurred without due pro-
cess of law, had deprived him of access to the courts, and had burdened his free
exercise of religion. He further alleged that Bynum had confiscated his prop-
erty and instituted the disciplinary action in retaliation for exercising First
Amendment rights. Moreover, DeMarco insisted that Stephens and Boyle
were deliberately indifferent to those constitutional violations.           Finally,
DeMarco claimed that Boyle had denied him due process at the disciplinary
hearing by tampering with evidence and prohibiting him from calling his own
witnesses. The district court severed DeMarco’s challenge to the validity of the
disciplinary hearing and dismissed the remainder of the complaint for failure
to state a claim. See id. § 1915A(b)(1).

                                         II.
      This court reviews dismissals under § 1915A(b)(1) de novo, using the
standard applied under Federal Rule of Civil Procedure 12(b)(6). Legate v. Liv-
ingston, 822 F.3d 207, 210 (5th Cir. 2016). “Under that standard, a complaint
will survive dismissal for failure to state a claim if it contains sufficient factual
matter, accepted as true, to state a claim to relief that is plausible on its face.”
Id. (internal quotation marks and citation omitted). A claim is facially plausi-
ble “when the plaintiff pleads factual content that allows the court to draw the


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                                       No. 17-11230
reasonable inference that the defendant is liable for the misconduct alleged.” 1
“We do not accept as true conclusory allegations, unwarranted factual infer-
ences, or legal conclusions.” 2

                                             A.
       DeMarco avers that he was denied due process at the disciplinary pro-
ceeding because Boyle tampered with the witness statements and prevented
him from calling witnesses. The district court severed those claims because
they were potentially cognizable under 28 U.S.C. § 2254. 3 Because DeMarco
does not contest that decision on appeal, he has waived any challenge to it. See
United States v. Thibodeaux, 211 F.3d 910, 912 (5th Cir. 2000) (per curiam).
He must therefore raise those claims in a habeas corpus petition, not under
§ 1983.

                                             B.
       DeMarco claims that his personal property was seized without due pro-
cess. Nevertheless, “a deprivation of a constitutionally protected property
interest caused by a state employee’s random, unauthorized conduct does not
give rise to a § 1983 procedural due process claim, unless the State fails to
provide an adequate postdeprivation remedy.” Allen v. Thomas, 388 F.3d 147,
149 (5th Cir. 2004) (quoting Zinermon v. Burch, 494 U.S. 113, 115 (1990)).
Conduct is not “random or unauthorized” if the state “delegated to [the defen-
dants] the power and authority to effect the very deprivation complained of.”


       1Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550
U.S. 544, 556 (2007)).
       2 Gentilello v. Rege, 627 F.3d 540, 544 (5th Cir. 2010) (citation omitted) (quoting
Plotkin v. IP Axess Inc., 407 F.3d 690, 696 (5th Cir. 2005)).
       3See Heck v. Humphrey, 512 U.S. 477, 481 (1994) (citing Preiser v. Rodriguez, 411
U.S. 475, 488–90 (1973)) (“[H]abeas corpus is the exclusive remedy for a state prisoner who
challenges the fact or duration of his confinement and seeks immediate or speedier release.”).
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                                       No. 17-11230
Id. (quoting Burch, 494 U.S. at 138).
       DeMarco has not alleged that the state delegated to Bynum the authority
to confiscate his personal property.              Instead, DeMarco contends that his
property was seized in violation of TDCJ policy. Additionally, Texas’s tort of
conversion provides an adequate post-deprivation remedy for prisoners claim-
ing loss of property without due process. Murphy v. Collins, 26 F.3d 541, 543–
44 (5th Cir. 1994). Accordingly, DeMarco’s due process claim is not cognizable
under § 1983.

                                             C.
       The district court correctly dismissed DeMarco’s claim that he was
denied access to the courts. Prisoners have “a constitutionally protected right
of access to the courts” that is rooted in the Petition Clause of the First Amend-
ment and the Due Process Clause of the Fourteenth Amendment. See Brewer
v. Wilkinson, 3 F.3d 816, 820–21 (5th Cir. 1993) (citations omitted). But that
right is not without limit. Rather, “it encompasses only ‘a reasonably adequate
opportunity to file nonfrivolous legal claims challenging [an inmate’s] convic-
tions or conditions of confinement.’” 4 To prevail on such a claim, a prisoner
must demonstrate that he suffered “actual injury” in that the prison “hindered
his efforts” to pursue a nonfrivolous action. 5             A prisoner must therefore
describe the predicate claim with sufficient detail to show that it is “arguable”
and involves “more than hope.” Christopher v. Harbury, 536 U.S. 403, 416
(2002).



       4Johnson v. Rodriguez, 110 F.3d 299, 310–11 (5th Cir. 1997) (quoting Lewis v. Casey,
518 U.S. 343, 356 (1996)).
       5See Lewis, 518 U.S. at 349, 351 (holding that the actual-injury requirement “derives
ultimately from the doctrine of standing”); Ruiz v. United States, 160 F.3d 273, 275 (5th Cir.
1998) (per curiam) (finding that the inmate failed to show actual injury because his
underlying claims were frivolous).
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                                      No. 17-11230
       DeMarco maintains that the confiscation of his legal materials prevented
him from filing a timely petition for writ of certiorari. But he has not identified
any actionable claim that he would have raised. Consequently, he has failed
to establish the actual harm necessary to support his denial-of-access claim. 6

                                             D.
       The district court properly dismissed DeMarco’s retaliation claim.
Under the First Amendment, a prison official may not harass or retaliate
against an inmate “for exercising the right of access to the courts, or for com-
plaining to a supervisor about a guard’s misconduct.” Woods v. Smith, 60 F.3d
1161, 1164 (5th Cir. 1995) (citations omitted). “To prevail on a claim of retali-
ation, a prisoner must establish (1) a specific constitutional right, (2) the defen-
dant’s intent to retaliate against the prisoner for his or her exercise of that
right, (3) a retaliatory adverse act, and (4) causation.” 7 Causation, in turn,
requires a showing that “but for the retaliatory motive the complained of
incident . . . would not have occurred.” McDonald, 132 F.3d at 231 (quoting
Johnson, 110 F.3d at 310). That standard places a “significant burden” on an
inmate as the court must regard claims of retaliation “with skepticism.”
Woods, 60 F.3d at 1166 (citation omitted). Mere conclusional allegations are
insufficient to support a retaliation claim. Id. Instead, an inmate “must pro-
duce direct evidence of motivation” or “allege a chronology of events from which
retaliation may plausibly be inferred.” Id. (citations omitted).

       DeMarco maintains that Bynum retaliated against him by confiscating
his personal property and filing a false disciplinary action.                In his brief,


       6 The district court held that despite the seizure of his legal materials, DeMarco
suffered no harm because he was represented by counsel. We may nonetheless affirm on any
basis supported by the record. LLEH, Inc. v. Wichita Cty., 289 F.3d 358, 364 (5th Cir. 2002).
       7Morris v. Powell, 449 F.3d 682, 684 (5th Cir. 2006) (quoting McDonald v. Steward,
132 F.3d 225, 231 (5th Cir. 1998)).
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                                        No. 17-11230
DeMarco states that the retaliation was motivated by the submission of an
earlier grievance on June 10, 2013. But in his answers to the district court’s
questionnaire, DeMarco maintained that he had filed the relevant grievance
on May 27, 2013. He also alleged that the retaliation occurred because he had
offered to serve as a witness against Bynum in 2012. This changing tale is
conclusional at best.        Because DeMarco has not demonstrated retaliatory
intent through direct evidence or a clear chronology of events, he has failed to
establish the second and fourth elements of his retaliation claim.                          See
McDonald, 132 F.3d at 231.

                                               E.
       DeMarco posits that Bynum burdened the free exercise of religion by
confiscating his religious materials. To fall within the purview of the Free
Exercise Clause, a claimant must possess a sincere religious belief. 8 An inmate
retains his right to the free exercise of religion, subject to reasonable restric-
tions stemming from legitimate penological concerns. See O’Lone v. Estate of
Shabazz, 482 U.S. 342, 349 (1987). In evaluating the reasonableness of a
prison policy, we consider (1) the existence of a “valid, rational connection”
between the state action and the “legitimate governmental interest put for-
ward to justify it;” (2) the availability of alternative means of exercising the
right; (3) the impact an accommodation will have on guards, other inmates,
and the allocation of prison resources; and (4) the absence of alternatives that
“fully accommodate[] the prisoner’s right[] at de minimis cost to valid


       8 See Wisconsin v. Yoder, 406 U.S. 205, 216 (1972) (noting that “philosophical and
personal . . . belief does not rise to the demands of the Religion Clauses”); Soc’y of Sepa-
rationists, Inc. v. Herman, 939 F.2d 1207, 1212 (5th Cir. 1991), on reh’g, 959 F.2d 1283 (5th
Cir. 1992) (citation omitted) (“[T]he Free Exercise query is whether this particular plaintiff
holds a sincere belief that the affirmation is religious.”); Ferguson v. Comm’r, 921 F.2d 588,
589 (5th Cir. 1991) (per curiam) (citations omitted) (“The protection of the free exercise clause
extends to all sincere religious beliefs.”).
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                                        No. 17-11230
penological interests.” 9

       A plaintiff bears the burden of proving that a prison policy, as applied, is
not reasonably related to legitimate penological objectives. 10 Moreover, prison
officials are entitled to “substantial deference” in the exercise of their profes-
sional judgment. See Overton, 539 U.S. at 132 (citations omitted). Neverthe-
less, the government “must do more . . . than merely show ‘a formalistic logical
connection between [its policy] and a penological objective.’” Prison Legal
News, 683 F.3d at 215 (quoting Beard v. Banks, 548 U.S. 521, 535 (2006)).
Though a plaintiff shoulders the ultimate burden of persuasion, 11 the govern-
ment must identify “‘a reasonable relation,’ in light of the ‘importance of the
rights [here] at issue.’” 12

       In dismissing DeMarco’s claim, the district court explained that he had
failed to name any religious belief or practice that was negatively impacted.
The court suggested that because DeMarco had not requested the return of his
religious materials, his professed faith was likely a sham.                     We disagree.
Though DeMarco did not specify that he was a Christian, he averred that


       9Turner v. Safley, 482 U.S. 78, 89–91 (1987) (citations omitted). See also Davis v.
Davis, 826 F.3d 258, 265 (5th Cir. 2016).
       10See Prison Legal News v. Livingston, 683 F.3d 201, 215 (5th Cir. 2012); see also
Overton v. Bazzetta, 539 U.S. 126, 132 (2003) (citations omitted) (“The burden . . . is not on
the State to prove the validity of prison regulations but on the prisoner to disprove it.”).
       11See Turner v. Cain, 647 F. App’x 357, 366–68 (5th Cir. 2016) (Wiener, J.,
concurring).
       12 Prison Legal News, 683 F.3d at 215 (quoting Beard, 548 U.S. at 535); see also
Mayfield v. Texas Dep’t Of Criminal Justice, 529 F.3d 599, 612 (5th Cir. 2008) (reversing the
district court’s grant of summary judgment in favor of the TDCJ because “none of the
penological interests provided by the TDCJ necessarily support[ed] limiting access to rune
literature in the prison library”); Thompson v. Solomon, No. 92-8240, 1993 WL 209926, at *2
(5th Cir. June 2, 1993) (per curiam) (concluding that the state’s “cursory response . . .
provide[d] an insufficient factual basis” to dismiss plaintiff’s free-exercise claim); Rudolph v.
Locke, 594 F.2d 1076, 1077 (5th Cir. 1979) (per curiam) (holding that the state’s “bare
assertion” that its regulation was an appropriate means of maintaining security was “not
enough” to deny relief on plaintiff’s First Amendment claims).
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                                      No. 17-11230
Bynum had confiscated copies of the Bible and religious books by Max Lucado,
Charles Swindoll, and Joel Osteen. Moreover, DeMarco asserted that the tak-
ing of those books had placed a substantial burden on his practice of reading
religious literature. His decision to seek damages—rather than the return of
his books—does not indicate that his religious belief is disingenuous. Indeed,
his books were allegedly destroyed, leaving damages as his only recourse.
Hence, with the benefit of liberal construction, DeMarco’s pro se pleadings
establish that the seizure of his books burdened a sincere religious practice.
See Woodfox v. Cain, 609 F.3d 774, 792 (5th Cir. 2010).

       Furthermore, the defendants have not “put forward” any legitimate gov-
ernment interest justifying the alleged seizure of DeMarco’s religious mate-
rials. Turner, 482 U.S. at 89. Rather, as DeMarco alleges, Bynum merely
stated that “he could take whatever he wanted whenever he wanted.” The
district court therefore erred in dismissing DeMarco’s free exercise claim
against Bynum in his individual capacity. 13 On remand, the court should
determine whether the alleged confiscation was reasonably related to a legiti-
mate penological objective.

       Nevertheless, the district court properly dismissed DeMarco’s free exer-
cise claim against Boyle and Stephens. “[T]o state a cause of action under sec-
tion 1983, the plaintiff must identify defendants who were either personally
involved in the constitutional violation or whose acts are causally connected to
the constitutional violation alleged.” 14 DeMarco does not aver that Boyle or


       13 DeMarco’s claim against Bynum in his official capacity is barred by sovereign
immunity. See Kentucky v. Graham, 473 U.S. 159, 169 (1985) (citations omitted) (“[A]bsent
waiver by the State or valid congressional override, the Eleventh Amendment bars a damages
action against a State in federal court. This bar remains in effect when State officials are
sued for damages in their official capacity.”).
       14Woods v. Edwards, 51 F.3d 577, 583 (5th Cir. 1995) (per curiam) (citing Lozano v.
Smith, 718 F.2d 756, 768 (5th Cir. 1983)).
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                                 No. 17-11230
Stephens personally confiscated his religious materials. Instead, he claims
that they caused the violation by failing to train their subordinates and by
ignoring previous complaints about Bynum. But DeMarco does not specify any
other examples of comparable violations. Nor does he explain how better train-
ing might have prevented the alleged violation. Such conclusional allegations
are insufficient to show that the alleged violation resulted from Boyle and Ste-
phens’ actions. DeMarco has thus failed to state a claim against them.

      The judgment of dismissal is AFFIRMED in part and REVERSED in
part and REMANDED. We place no limitation on the matters that the district
court can address on remand, and we do not mean to indicate how the court
should rule on any issue.




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