Dunn v. Prince , 327 F. App'x 452 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 16, 2009
No. 08-40258
Summary Calendar Charles R. Fulbruge III
Clerk
THOMAS DUNN
Plaintiff-Appellant
v.
JAMES PRINCE; JAMES MCCORMICK
Defendants-Appellees
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 5:07-CV-117
Before JONES, Chief Judge, and DENNIS and HAYNES, Circuit Judges.
PER CURIAM:*
Thomas Dunn, previously a Texas pretrial detainee at the Bowie County
Correctional Center (BCCC), appeals the district court’s dismissal of his
42 U.S.C. § 1983 complaint pursuant to F ED. R. C IV. P. 12(b)(6) and 56. This
court reviews the grant of a motion to dismiss pursuant to Rule 12(b)(6) and a
motion for summary judgment de novo. See Shanbaum v. United States, 32 F.3d
180, 182 (5th Cir. 1994); Fraire v. City of Arlington, 957 F.2d 1268, 1273 (5th Cir.
*
Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
No. 08-40258
1992). In reviewing a Rule 12(b)(6) motion, the “court accepts all well-pleaded
facts as true, viewing them in the light most favorable to the plaintiff,” but “the
plaintiff must plead ‘enough facts to state a claim to relief that is plausible on
its face.’” In re Katrina Canal Breaches Litigation, 495 F.3d 191, 205 (5th Cir.
2007)(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955,
1974 (2007)), cert. denied, 128 S. Ct. 1230, and cert. denied, 128 S. Ct. 1231
(2008). Summary judgment is proper “if the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no genuine
issue as to any material fact and that the movant is entitled to judgment as a
matter of law.” Rule 56(c). Conclusional allegations, speculation, improbable
inferences, or a mere scintilla of evidence are insufficient to defeat a summary
judgment motion. Michaels v. Avitech, Inc., 202 F.3d 746, 754-55 (5th Cir. 2000).
Dunn contends that the district court erred in rejecting his claims that he
was falsely imprisoned when he was held in the BCCC prior to his trial, despite
the fact that Bowie County had contracted with the Texas Department of
Criminal Justice-Institutional Division (TDCJ) to house convicted prisoners in
that facility. Dunn also maintains that he was falsely imprisoned for a second
time when he was released from custody under felony bond conditions despite
the fact that he was arrested for driving while intoxicated, which constitutes a
misdemeanor under state law. The district court properly held that to the extent
that Dunn was challenging the state criminal proceedings, he should have filed
a pretrial habeas petition. See Dickerson v. Louisiana, 816 F.2d 220, 223-24 (5th
Cir. 1987). To the extent that Dunn’s claims arise under § 1983, he is not
entitled to relief. Dunn has no right to complain about the facility in which he
is incarcerated absent an assertion that he had suffered more severe conditions
as a form of punishment. See Tighe v. Wall, 100 F.3d 41, 42 (5th Cir. 1996)(per
curiam); Parker v. Carpenter, 978 F.2d 190, 192-93 (5th Cir. 1992). With respect
to the bond conditions, Dunn has admitted that the county officials were aware
at the time of his arrest that he was a recidivist DWI defendant, raising his
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No. 08-40258
misdemeanor offense to a felony; he has not established that the State was
bound by his arrest report to consider his offense as a misdemeanor.
Dunn maintains that he was denied an attorney for nearly two months
after his arrest. Such a claim sounds in habeas and should be raised in such a
motion. See Dickerson, 816 F.2d at 223-24. Even if the claims were properly
presented under § 1983, Dunn has not alleged a constitutional violation. See
Berkemer v. McCarty, 468 U.S. 420, 428-29 (1984); United States v. Gouveia,
467 U.S. 180, 187-89 (1984).
Dunn asserts that his incarceration in a TDCJ contract facility violates the
Thirteenth Amendment. He has not established that he was subjected to
involuntary servitude or slavery. See Watson v. Graves, 909 F.2d 1549, 1552
(5th Cir. 1990). Dunn’s conclusional assertion that he was “sold” into slavery
because Bowie County receives payment from the TDCJ for all individuals held
in the BCCC is insufficient to establish that Dunn is entitled to relief. See
Michaels, 202 F.3d at 754-55.
Dunn contends that the BCCC officials violated his right to correspond
freely about religious matters with prisoners at other facilities. Although Dunn
is a pretrial detainee, the BCCC’s rules on correspondence apply to him with
equal force. See Jones v. Diamond, 594 F.2d 997, 1014 (5th Cir. 1979). The
BCCC’s requirement that inter-facility mail requires the consent of both
wardens is a reasonable restriction on First Amendment rights. See Turner v.
Safley, 482 U.S. 78, 81-82, 91 (1987). The fact that Dunn’s letters concerned
religious matters does not provide greater protections under the Constitution.
See Powell v. Estelle, 959 F.2d 22, 23-24 (5th Cir. 1992), superseded by statute as
stated in Diaz v. Collins, 114 F.3d 69 (5th Cir. 1997).
Dunn has asserted that the district court should not have considered his
allegations that he was denied free medical care, meals, or a safe environment
during his stay in the Bowie County jail. He has thus waived these claims of
constitutional violations. Moreover, because Dunn has not identified any error
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No. 08-40258
in the district court’s rejection of the merits of the claims, he has abandoned any
such contention. See Brinkmann v. Dallas County Deputy Sheriff Abner,
813 F.2d 744, 748 (5th Cir, 1987).
Dunn attempts to raise claims on behalf of numerous “innocent tax
payer[]s” incarcerated in the BCCC before being convicted. Because he does not
challenge the district court’s conclusion that he lacked standing to raise claims
for other pretrial detainees, such claims are abandoned. See id.
Dunn asserts that the appellees wrongly stated that he had not moved for
summary judgment. Although he did request such relief, he did not establish
“that there is no genuine issue as to any material fact and that [he] is entitled
to judgment as a matter of law.” Rule 56(c). To the extent that Dunn is
asserting that the district court erred in not addressing his motion for a
declaratory judgment, the court in fact held that he was not entitled to
declaratory relief because he was no longer incarcerated at the BCCC. See
Herman v. Holiday, 238 F.3d 660, 665 (5th Cir. 2001). Dunn has not established
that he was entitled to counsel in the district court. See Ulmer v. Chancellor,
691 F.2d 209, 212 (5th Cir. 1982).
Dunn has not established that he has pleaded plausible claims or that
genuine issues of material fact exist precluding summary judgment in favor of
the defendants. See Rule 56(e); Katrina Canal Breaches, 495 F.3d at 205. As a
result, the judgment of the district court is AFFIRMED.
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