Richardson v. Lumpkin ( 2022 )

Case: 21-50049 Document: 00516534665 Page: 1 Date Filed: 11/04/2022
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
No. 21-50049 FILED
November 4, 2022
Summary Calendar
Lyle W. Cayce
Clerk
Robert Edward Richardson,
Plaintiff—Appellant,
versus
Bobby Lumpkin, Director, Texas Department of Criminal Justice,
Correctional Institutions Division,
Defendant—Appellee.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:20-CV-130
Before Stewart, Duncan, and Wilson, Circuit Judges.
Per Curiam:*
Robert Edward Richardson, Texas prisoner # 468111, appeals the
district court’s grant of summary judgment in favor of the defendant and
dismissal of his claims under 42 U.S.C. § 1983 alleging violations of his due
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 21-50049 Document: 00516534665 Page: 2 Date Filed: 11/04/2022
No. 21-50049
process and Eighth Amendment rights based on his years-long confinement
in administrative segregation and “chronically mentally ill sheltered
housing” (CMI-SH). Richardson, who identified his faith as Native
American Shamanism, further alleged violations of his rights under the
Religious Land Use and Institutionalized Persons Act (RLUIPA), the First
Amendment, and the Equal Protection Clause because he was not allowed to
grow his hair long or wear his religious headgear and medicine bag at all times
and was unable to obtain sacred medicine cards and a dreamcatcher.
We review the grant of a motion for summary judgment de novo. See
Xtreme Lashes, LLC v. Xtended Beauty, Inc., 576 F.3d 221, 226 (5th Cir.
2009). Summary judgment is appropriate if the record discloses “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).
Regarding his Eighth Amendment claim based on his custodial status,
although Richardson argues that he should no longer be housed in
administrative segregation or CMI-SH based on his good behavior, he has not
asserted that he was denied any of life’s necessities or that Texas Department
of Criminal Justice (TDCJ) officials acted with deliberate indifference to his
health or safety while he has been confined in administrative segregation. See
Farmer v. Brennan, 511 U.S. 825, 834 (1994). Further, in relation to
Richardson’s due process claim, he has not shown, or even challenged, the
determination that the conditions he faced were not onerous enough to
constitute an atypical prison situation. See Hernandez v. Velasquez, 522 F.3d
556, 562-63 (5th Cir. 2008).
Because Richardson does not meaningfully challenge the district
court’s determination that the TDCJ policy limiting the times that he could
wear his religious headband and medicine pouch did not substantially burden
his ability to practice his religion or the determination that he failed to explain
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No. 21-50049
how the denial of the medicine cards and dreamcatcher caused him to violate
his religious beliefs, he has abandoned these RLUIPA claims. See Yohey v.
Collins, 985 F.2d 222, 225 (5th Cir. 1993); see also Brinkmann v. Dallas Cnty.
Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987); Adkins v. Kaspar, 393
F.3d 559, 567 & n.32 (5th Cir. 2004); Garner v. Kennedy, 713 F.3d 237, 241
(5th Cir. 2013). Richardson has not shown that he was not afforded the
reasonable opportunity to practice his religion under the First Amendment,
see Cruz v. Beto, 405 U.S. 319, 322 (1972), and he has abandoned, based on
his failure to brief, his claim that his equal protection rights were violated
when he was not allowed to wear his headband and medicine pouch at all
times, see Brinkmann, 813 F.2d at 748.
Richardson has abandoned his RLUIPA and First Amendment claims
based on TDCJ’s grooming policy because he fails to specifically challenge
the district court’s least-restrictive way determination under the RLUIPA,
see Mayfield v. Tex. Dep’t of Crim. Justice, 529 F.3d 599, 613 (5th Cir. 2008),
or argue that the restriction is not reasonably related to the TDCJ’s
penological interest of safety as he was required to do in conjunction with his
First Amendment claim, see Turner v. Safley, 482 U.S. 78, 89 (1987).
Additionally, Richardson’s conclusional assertion that his religious
beliefs are being violated because he is not permitted to attend religious
ceremonies in general population, without more, is insufficient to show a
constitutional violation. See Brinkmann, 813 F.2d at 748; see also Koch v.
Puckett, 907 F.2d 524, 530 (5th Cir. 1990). Finally, Richardson has not
established that the district court abused its discretion by denying his motion
for the appointment of counsel. See Cooper v. Sherriff, Lubbock Cty., Tex., 929
F.2d 1078, 1084 (5th Cir. 1991); see also Cupit v. Jones, 835 F.2d 82, 86 (5th
Cir. 1987).
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No. 21-50049
We AFFIRM the judgment of the district court and DENY the
motion for oral argument and the motion for preliminary injunction and
temporary restraining order.
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