738 F.3d 651 (5th Cir. 2013), 12-40695, McCreary v. Richardson

Docket Nº:12-40695.
Citation:738 F.3d 651
Opinion Judge:PER CURIAM:
Party Name:James McCREARY, Plaintiff-Appellant v. Jeffery RICHARDSON, Captain, Defendant-Appellee.
Attorney:James McCreary, Houston, TX, pro se. Patrick Nicholas Brezik, Assistant Attorney General, Marjolyn Carol Gardner, Assistant Attorney General, Office of the Attorney General, Austin, TX, for Defendant-Appellee.
Judge Panel:Before JONES and CLEMENT, Circuit Judges, and KAZEN[*], District Judge. KAZEN, District Judge, concurring in part and dissenting in part.
Case Date:October 07, 2013
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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738 F.3d 651 (5th Cir. 2013)

James McCREARY, Plaintiff-Appellant


Jeffery RICHARDSON, Captain, Defendant-Appellee.

No. 12-40695.

United States Court of Appeals, Fifth Circuit.

October 7, 2013

As Revised Oct. 9, 2013.

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[Copyrighted Material Omitted]

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James McCreary, Houston, TX, pro se.

Patrick Nicholas Brezik, Assistant Attorney General, Marjolyn Carol Gardner, Assistant Attorney General, Office of the Attorney General, Austin, TX, for Defendant-Appellee.

Appeal from the United States District Court for the Eastern District of Texas.

Before JONES and CLEMENT, Circuit Judges, and KAZEN[*], District Judge.


James McCreary, Texas prisoner # 1370831, appeals pro se the district court's dismissal of his lawsuit against Captain Jeffrey Richardson of the Texas Department of Criminal Justice (" TDCJ" ). For the following reasons we AFFIRM.


On May 13, 2011, McCreary and over a hundred other Muslim prisoners were standing in the hallway of the H.H. Coffield Unit waiting to attend a Jumu'ah service. Jumu'ah is an obligatory day of assembly for Muslims. Captain Richardson, who had been sitting at a nearby desk, reportedly approached McCreary and stated that he " wish[ed] he could shut [the] service down." McCreary asked Richardson why " he always single[d] out the Muslims['] services subjecting [the Muslims] to harassment." Richardson then became " irate," used abusive language, and threatened to send McCreary to lock-up and to strip search him. When Richardson asked McCreary if McCreary had a problem with Richardson's behavior, McCreary responded " yes," and asked Richardson, " What have we done to make you mistreat the [M]uslims every time when we have our services?" Richardson then ordered a strip search of McCreary.

McCreary objected to the search, informing Richardson that his religion did not allow him to be naked in front of females other than his wife. Richardson nevertheless conducted the search in the hallway in front of female officers and staff. McCreary repeated that the strip search was a violation of his beliefs, to which Richardson responded that he " did not care about [McCreary's] belief or [him]." McCreary claimed that Richardson performed the search " for his own personal sexual gratification and homosexual preferences." Richardson also reportedly prevented McCreary from attending the Jumu'ah service after the strip search was completed. The exact time period that McCreary was forced to remain unclothed during the strip search is unclear— but the record indicates that the strip search was a lengthy one. After the strip search concluded, McCreary alleged that he (now clothed) was forced to remain standing in a corner of the hallway until another guard instructed McCreary to return to his cell block.

McCreary filed a complaint against Richardson in his individual capacity, alleging that Richardson conducted an unconstitutional strip search. McCreary also alleged that Richardson improperly prevented McCreary from attending religious services in violation of the Religious Land Use and Institutionalized Person's Act (" RLUIPA" ), the First, Fourth, and Fourteenth Amendments, Texas state law, and 42 U.S.C. §§ 1981, 1986, and 1988.

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After a Spears hearing, see Spears v. McCotter, 766 F.2d 179 (5th Cir.1985), McCreary moved for limited discovery to obtain various TDCJ policy documents regarding strip searches, including documents describing when and where strip searches could be conducted. The Magistrate Judge granted McCreary's request and directed Richardson to specify whether the search was conducted pursuant to a specific order or policy— and if so, to produce such order or policy— or upon his belief that there was reasonable cause to conduct the search. Richardson responded that the search was conducted based on his belief that there was reasonable cause, and did not turn over any additional documents.

McCreary filed a motion for a default judgment or, in the alternative, an " order to disclose" additional TDCJ orders and policies regarding strip searches. McCreary contended that the district court had ordered Richardson to produce a copy of the orders or policies, and that he had failed to do so. Richardson responded that he had complied with the Magistrate Judge's order, but agreed to produce a copy of the TDCJ administrative directive authorizing strip searches upon a supervisor's belief that there is reasonable cause. The Magistrate Judge found that Richardson acted in compliance with the court order, and recommended that the district court deny McCreary's request for a default judgment or any further discovery. The district court adopted the Magistrate Judge's report over McCreary's objections, and denied the motion.

Richardson moved for summary judgment asserting that McCreary's claims were without merit and that he was entitled to qualified immunity. The Magistrate Judge found that: (1) McCreary had no standing to pursue injunctive relief because Richardson was no longer employed at the Coffield Unit; (2) McCreary did not have a claim for damages under RLUIPA; and (3) Richardson was entitled to qualified immunity under 42 U.S.C. § 1983 because McCreary had not shown that Richardson's actions were objectively unreasonable in light of clearly established law at the time of the incident. The district court adopted the Magistrate Judge's report, granted Richardson's motion for summary judgment, dismissed McCreary's federal claims with prejudice, and dismissed his supplemental state claims without prejudice. McCreary filed a timely notice of appeal, challenging both the denial of default judgment and the dismissal of his lawsuit.


Discovery rulings are " committed to the sound discretion of the trial court" and will not be reversed on appeal unless " arbitrary or clearly unreasonable." Williamson v. USDA, 815 F.2d 368, 373, 382 (5th Cir.1987). Summary judgment rulings are reviewed de novo, with all facts and inferences construed in the light most favorable to the nonmoving party. Dillon v. Rogers, 596 F.3d 260, 266 (5th Cir.2010). A movant is entitled to summary judgment upon a showing " 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. Discovery Motions

The district court did not abuse its discretion in denying McCreary's motion for a default judgment, or, in the alternative, to compel discovery. Although the Magistrate Judge granted McCreary's motion for limited discovery, Richardson complied with the court's order in full and was under no obligation to produce additional documents. Furthermore, because Richardson admitted that the search was conducted

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based on his personal belief that reasonable cause existed, the orders and policies sought by McCreary were not relevant to Richardson's motion for summary judgment or the issue of his qualified immunity. McCreary has " failed to show that discovery was necessary to establish any issue of material fact that would preclude summary judgment," and the district court's discovery rulings will not be disturbed. King v. Dogan, 31 F.3d 344, 346 (5th Cir.1994).

B. Summary Judgment

McCreary does not have standing to pursue injunctive relief because Richardson is without authority to redress his injuries. See Okpalobi v. Foster, 244 F.3d 405, 427 (5th Cir.2001); see also City of Los Angeles v. Lyons, 461 U.S. 95, 102, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983) (" Past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief if unaccompanied by any continuing, present adverse effects." (quoting O'Shea v. Littleton, 414 U.S. 488, 495-96, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974) (internal alterations omitted))). Richardson is no longer employed at the Coffield Unit and does not have the duty or ability to affect the conditions of McCreary's incarceration there. Because Richardson does not have the " power[ ] to redress the injuries alleged," McCreary's request for injunctive relief was properly dismissed. Okpalobi, 244 F.3d at 427.

McCreary has abandoned his claims under 42 U.S.C. §§ 1981, 1986, and 1988 by failing to raise them on appeal. Although pro se briefs are afforded liberal construction, Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972), even pro se litigants must brief arguments in order to preserve them. Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir.1993). We consider only whether McCreary is entitled to monetary relief under RLUIPA or monetary relief under 42 U.S.C. § 1983 for violations of his First, Fourth, or Fourteenth Amendment rights.


An inmate is not entitled to monetary damages under RLUIPA for a suit brought against a correctional officer in his individual capacity. Sossamon v. Lone Star State of Tex., 560 F.3d 316, 328 (5th Cir.2009), aff'd sub nom Sossamon v. Texas, __ U.S. __, 131 S.Ct. 1651, 179 L.Ed.2d 700 (2011). Accordingly, McCreary's RLUIPA claims were properly dismissed.

ii. 42 U.S.C. § 1983

Prior to considering whether McCreary can succeed on his claims under § 1983, we must consider whether Richardson was entitled to qualified immunity. See Pearson v. Callahan, 555 U.S. 223, 232, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). State actors sued in their individual capacity under § 1983 are entitled to qualified immunity " insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). " Qualified...

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