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 2006-07

Lair v. Purdy ( 2006 )


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  •                                                                 United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT                       July 6, 2006
Charles R. Fulbruge III
No. 04-41466                             Clerk
Summary Calendar
SCOTT MARK LAIR, ET AL.,
Plaintiffs,
SCOTT MARK LAIR,
Plaintiff-Appellant,
versus
MIKE PURDY, etc., ET AL.,
Defendants,
MIKE PURDY, individually and as Warden of FCI-TRV; LARRY SANDSON;
LIEUTENANT ROBERT SWAIN, individually and as Lieutenant FCI-TRV;
MIKE CARVAJAL, individually and as Lieutenant FCI-TRV; BERNIE
AYALA, individually and as Correction Officer FCI-TRV; MIKE RUIZ,
individually and as Deputy Sheriff Live Oak County; John Doe #1;
John Doe #2; John Doe #3; John Doe #4; John Doe #5; UNITED STATES
OF AMERICA,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:01-CV-381
--------------------
Before JONES, Chief Judge, and BARKSDALE and BENAVIDES, Circuit
Judges.
PER CURIAM:*
Scott Mark Lair, federal prisoner # 76589-079, appeals the
dismissal,     on    remand,   of   the   following   claims:     (1)    He   was
*
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opinion should not be published and is not precedent except under the limited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.
subjected to harsher visitation restrictions than other inmates, in
violation    of    his    rights      under       the    First   Amendment;     (2)    his
placement in the Special Housing Unit (SHU) violated his due
process rights; and, (3) Lt. Swain and Officer Ayala retaliated
against him for filing grievances and for writing letters regarding
his treatment in prison.
Lair argues that his claim based on visitation restrictions is
not frivolous because prison officials used the visitation process
as a “bargaining chip” to force him to submit to their authority.
The    district    court       did   not    err    in    dismissing    this    claim    as
frivolous and for failure to state a claim on which relief can be
granted.    See Berry v. Brady,
    192 F.3d 504
    , 508 (5th Cir. 1999);
Thorne v. Jones,
    765 F.2d 1270
    , 1274 (5th Cir. 1985).                         Because we
affirm the dismissal of the claim based on visitation restrictions
on the above grounds, we do not reach Lair’s argument that the
district court erred in dismissing the claim as time barred.                           See
Sojourner T v. Edwards,
    974 F.2d 27
    , 30 (5th Cir. 1992).
Lair contends that his 420-day confinement in the SHU was
unconstitutional and that the reasons given for his placement in
the SHU were “false.”            He maintains that the defendants violated
regulations governing the Bureau of Prisons in confining him to the
SHU.     Lair     has    not    shown      that    the    district    court    erred   in
dismissing his due process claim regarding his placement in the SHU
for failure to state a claim.              See Pichardo v. Kinker,
    73 F.3d 612
    ,
612 (5th Cir. 1996); Luken v. Scott,
    71 F.3d 192
    , 193 (5th Cir.
2
1995).
Lair contends that the district court erred in dismissing his
retaliation claim against Lt. Swain and Officer Ayala. He contends
that the grievances he filed on other matters were sufficient under
the   circumstances      to     provide       notice    of     his    claims    and    to
substantially comply with the exhaustion requirement. Lair has not
shown that the district court erred in dismissing his retaliation
claims against Lt. Swain and Officer Ayala for failure to exhaust
administrative remedies. See Days v. Johnson,
    322 F.3d 863
    , 866-68
(5th Cir. 2003).
It is unclear whether the district court’s dismissal of the
retaliation     claims    was      with   prejudice          with    respect    to    the
exhaustion requirement. The judgment of the district court will be
affirmed   as    modified     to    reflect      that    the        dismissal   of    the
retaliation claims against Lt. Swain and Officer Ayala is without
prejudice.      See Wright v. Hollingsworth,
    260 F.3d 357
    , 359 (5th
Cir. 2001).      Because we affirm the dismissal of the retaliation
claims for failure to exhaust administrative remedies, we do not
reach Lair’s argument that the district court erred in dismissing
the retaliation claims for failure to state a claim on which relief
can be granted.     See Sojourner T,
    974 F.2d at 30
    .
AFFIRMED AS MODIFIED.
3