Morris v. Lumpkin

Case: 19-51104 Document: 00515905877 Page: 1 Date Filed: 06/18/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
No. 19-51104 June 18, 2021
Summary Calendar Lyle W. Cayce
Clerk
Michelle A. Morris,
Plaintiff—Appellant,
versus
Bobby Lumpkin, Director, Texas Department of Criminal Justice,
Correctional Institutions Division; Warden Jacqueline Jones;
Warden Kelli Forrester,
Defendants—Appellees.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:18-CV-322
Before Haynes, Willett, and Ho, Circuit Judges.
Per Curiam:*
Michelle A. Morris, Texas prisoner # 896824, appeals the district
court’s summary judgment dismissal as moot of her 42 U.S.C. § 1983 lawsuit
complaining that the defendants’ refusal to provide her with nutritionally
*
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opinion should not be published and is not precedent except under the limited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: 19-51104 Document: 00515905877 Page: 2 Date Filed: 06/18/2021
No. 19-51104
sufficient kosher meals at no cost violated her rights under the Religious Land
Use and Institutionalized Persons Act (RLUIPA) and the Equal Protection
Clause. Because the defendants provided uncontested evidence that, after
the filing of the complaint, Crain Unit officials began providing Morris with
pre-packaged, shelf-safe, kosher-certified meals on May 30, 2019, and would
continue to do so for the remainder of her incarceration, there was no longer
a live case or controversy before the court, and summary judgment dismissal
of the complaint was proper. See FED. R. CIV. P. 56(a); Already, LLC v.
Nike, Inc., 568 U.S. 85, 90 (2013).
Morris argues that there remains a live case or controversy because
the kosher meals provided to her are inferior to those that male Jewish
inmates receive; do not meet federal nutritional guidelines; make her
stomach hurt; and put her health in jeopardy, forcing her to choose between
observing her religion and following a healthy diet as ordered by her
physicians. She also asserts that the defendants provided incomplete and
misleading documents in support of their summary judgment motion, urging
that the logs showing her receipt of kosher meals failed to demonstrate that
she began refusing them because she had stomach pains after each meal.
These arguments were raised for the first time in Morris’s Rule 60(b)
motion and are construed as a challenge to the denial of that motion.
However, Morris fails to demonstrate that the denial amounted to an abuse
of discretion. See Edwards v. City of Houston, 78 F.3d 983, 995 (5th Cir. 1996)
(en banc); Seven Elves, Inc. v. Eskenazi, 635 F.2d 396, 402 (5th Cir. 1981). As
the district court found, her complaint concerning the allegedly incomplete
or misleading documents does not constitute fraud within the meaning of
Rule 60(b)(3). See Hesling v. CSX Transp., Inc., 396 F.3d 632, 641 (5th Cir.
2005).
2
Case: 19-51104 Document: 00515905877 Page: 3 Date Filed: 06/18/2021
No. 19-51104
Likewise, Morris has not demonstrated any exceptional
circumstances establishing that the dismissal of her original claim as moot
was error. See Hess v. Cockrell, 281 F.3d 212, 216 (5th Cir. 2002). Her
dissatisfaction with the kosher meals being provided to her is a distinct claim
from the claim raised in her original complaint. Although Morris now
contends that the claim was not a new one because she grieved it through the
prison grievance system, those grievances post-dated the filing of her
complaint, and she never amended her complaint to raise a claim that,
although she was being provided kosher meals at no cost, the meals provided
were inadequate. The district court did not abuse its discretion in denying
relief under Rule 60(b)(6) based on the conclusion that the claim was a newly
raised one which did not establish any error in the dismissal of her complaint
and which could be raised in a new lawsuit.1 See Seven Elves, Inc., 635 F.2d at
402. Accordingly, the district court’s judgment is AFFIRMED.
Morris’s motion for the appointment of counsel is DENIED. See
Cooper v. Sheriff, Lubbock Cnty., Tex., 929 F.2d 1078, 1084 (5th Cir. 1991).
Her motion for the recovery of costs is similarly DENIED. See FED. R.
CIV. P. 54(d); 42 U.S.C. § 1988; see also Buckhannon Bd. and Care Home, Inc.
v. W. Va. Dep’t of Health and Human Res., 532 U.S. 598, 603-04 (2001);
Walker v. City of Mesquite, 313 F.3d 246, 249 (5th Cir. 2002).
1
Morris has abandoned by failing to brief any argument renewing her alternative
claim that she was entitled to relief under Rule 60(b)(1) based on excusable neglect. See
Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
3