Mahmoud v. Bowie ( 2000 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-31255
Summary Calendar
MOHD RIBHE MAHMOUD
Plaintiff - Appellant
v.
GEORGE BOWIE, Etc; ET AL
Defendants
GEORGE BOWIE, Individually and in his official capacity;
MARY HILL, Individually and in her official capacity;
SID HEBERT, Individually and in his official capacity;
AGATHA BOUTTEE; LOUIS DORSEY; JERRY DORBY; JOSE, Lieutenant;
HOLMES, Sergeant; JUDY CUFFEE; JOE FINK; RON NICHOLAS;
LYNN UNDERDOWNE; RAYMOND MURREY; MICHEAL KELLY; MIKE ROMERO;
WILLIAM FLORES; DEBBY MITCHELLE
Defendants - Appellees
--------------------
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 99-CV-275
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September 14, 2000
Before KING, Chief Judge, and JONES and STEWART, Circuit Judges.
PER CURIAM:*
Mohd Ribhe Mahmoud, a detainee of the Immigration and
Naturalization Service (INS) # A22539-198, filed a civil rights
action under 42 U.S.C. § 1983 and Bivens v. Six Unknown Named
Agents, 403 U.S. 388, 389 (1971) against various INS officials
*
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that this opinion should not be published and is not precedent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.
No. 99-31255
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and officials of the Iberia Parish Jail. Contrary to the finding
of the district court, Mahmoud is not subject to the Prisoner
Litigation Reform Act (PLRA) because the PLRA does not apply to
INS detainees. See Ojo v. INS, 106 F.3d 680, 682 (5th Cir.
1997); Edwards v. Johnson, 209 F.3d 772, 776 (5th Cir. 2000).
Mahmoud may proceed in forma pauperis (IFP) on appeal in
accordance with Fed. R. App. P. 24(a)(3). Accordingly, the
district court’s order of December 27, 1999, imposing a filing
fee under the PLRA is VACATED and any money paid in conformance
to that order shall be returned to Mahmoud.
With respect to the merits of Mahmoud’s appeal we review a
dismissal for failure to state a claim pursuant to Fed. R. Civ.
P. 12(b)(6) de novo. Black v. Warren, 134 F.3d 732, 734 (5th
Cir. 1998). We will assume the truth of Mahmoud’s factual
allegations, and will uphold the lower court “only if it appears
that no relief could be granted under any set of facts that could
be proven consistent with the allegations.” Moore v. Carwell,
168 F.3d 234, 236 (5th Cir. 1999) (citation omitted).
Mahmoud asserts that he was deprived of his property without
due process of law. "Under the Parratt/Hudson doctrine, a state
actor's random and unauthorized deprivation of a plaintiff's
property does not result in a violation of procedural due process
rights if the state provides an adequate postdeprivation remedy."
Alexander v. Ieyoub, 62 F.3d 709, 712 ( 5th Cir. 1995) (footnote
omitted); Parratt v. Taylor, 451 U.S. 527, 541-44 ( 1981)
(overruled in part not relevant here, Daniels v. Williams, 474
U.S. 327 (1986)); Hudson v. Palmer, 468 U.S. 517, 533 (1984).
No. 99-31255
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Mahmoud’s allegation that prison officials stole his property
following cell searches fits these conditions. Marshall v.
Norwood, 741 F.2d 761, 763-64 (5th Cir. 1984).
Mahmoud asserts that he was denied access to the courts.
Mahmoud asserts that he suffered prejudice because this court
refused his suggestion for a rehearing en banc and because the
Supreme Court denied certiorari in his habeas case and because he
was not able to timely apply for relief under new rules of the
International Convention Against Torture. These assertions do
not demonstrate prejudice to his case. Bounds v. Smith, 430 U.S.
817, 828 (1977). Mahmoud also alleges that he was not given
enough time in the law library to provide help to other inmates.
This claim asserts the rights of others and does not implicate
Mahmoud‘s right to prepare and transmit his own necessary legal
documents to a court. See Brewer v. Wilkinson, 3 F.3d 816, 821
(5th Cir. 1993).
Mahmoud asserts various unconstitutional conditions of
confinement. The due process clause of the Fourteenth Amendment
protects detainees from being subjected to conditions of
confinement that constitute punishment. Hamilton v. Lyons, 74
F.3d 99, 103 (5th Cir. 1996)(citing Bell v. Wolfish, 441 U.S.
520, 535 (1979). The Bell test applies "when a pretrial detainee
attacks general conditions, practices, rules, or restrictions of
pretrial confinement." Hare v. City of Corinth, 74 F.3d 633, 643
(5th Cir. 1996) (en banc). If a pretrial detainee bases his
claim upon a jail official's "episodic acts or omissions," the
standard of subjective deliberate indifference enunciated in
No. 99-31255
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Farmer v. Brennan, 511 U.S. 825 (1994), is the measure of
culpability. Hare, 74 F.3d at 643.
With respect to his claims of denial of medical care,
Mahmoud is raising a claim of an episodic denial of medical care
and he has not demonstrated deliberate indifference to his
serious medical needs. Mendoza v. Lynaugh, 989 F.2d 191, 195
(5th Cir. 1993).
Mahmoud asserts that the jail does not have adequate fire
protection; that the shower and toilet area were unsanitary; that
the jail does not provide for adequate physical exercise or
mental stimulation; that he was not clothed properly; that he was
not issued nail clippers and Q-tips; and that the food was
unappetizing. All of these claims are either conclusional or de
minimis and do not rise to the level of constitutional
violations. The judgment of the district court is AFFIRMED.
AFFIRMED; IFP ORDER VACATED.