Berenguel v. Bell

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 27, 2008
No. 07-10066
Summary Calendar Charles R. Fulbruge III
Clerk
THOMAS R BERENGUEL
Plaintiff-Appellant
v.
CHARLES C BELL, Smith Unit; DAVID F FONDREN, Smith Unit; SUSAN M
ZINN, Smith Unit; BENNY G BUNDY, Smith Unit; MICHAEL PEREZ, Smith
Unit; CYNTHIA D GUYER, Smith Unit; KRISTA M TOMLINSON, Smith Unit;
SANDRA A PORTILLO, Smith Unit; LARRY D LATIMER, Smith Unit;
ALBERT JIMENEZ, Smith Unit; ESPIRIDION B QUIROZ, JR, Smith Unit
Defendants-Appellees
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:06-CV-101
Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Thomas R. Berenguel, Texas prisoner # 875536, appeals the district court’s
dismissal of his 42 U.S.C. § 1983 complaint as frivolous and for failure to state
a claim upon which relief may be granted.
*
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should not be published and is not precedent except under the limited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. 07-10066
Berenguel’s complaint, as supplemented during a hearing conducted by
the district court pursuant to Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985),
avers that the prison staff defendants violated his First Amendment rights to
communicate with his family and his attorney. He complained that the
offending conduct was accomplished through censorship and seizure of his
outgoing personal and legal mail, denial of access to a telephone call from his
attorney, retaliation, and conspiracy.
On appeal, Berenguel did not adequately brief and discuss his conspiracy
claims, the single incident in which a letter to his attorney was purportedly
delayed and censored, or the one occasion on which prison staff allegedly did not
inform him of a telephone call from his counsel. He has therefore abandoned
those claims. See Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d
744, 748 (5th Cir. 1987) (stating that this court will not raise and discuss legal
issues that an appellant has failed to assert); Grant v. Cuellar, 59 F.3d 523, 524
(5th Cir. 1995) (emphasizing that although pro se briefs are construed liberally,
pro se parties must still brief the issues and reasonably comply with FED. R. APP.
P. 28(a)).
With respect to his remaining claims, Berenguel argues that the district
court erred in dismissing the claims as frivolous and for failure to state a claim
upon which relief may be granted. Because the district court dismissed
Berenguel’s claims as both frivolous and for failure to state a claim, our review
is de novo. See Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir. 2005). A complaint
is frivolous if it lacks an arguable basis in law or fact. Berry v. Brady, 192 F.3d
504, 507 (5th Cir. 1999). A dismissal for failure to state a claim will be affirmed
only if it appears that no relief could be granted under any set of facts that might
be proven consistent with the complaint’s allegations. McGrew v. Texas Bd. of
Pardons & Paroles, 47 F.3d 158, 160 (5th Cir. 1995).
Berenguel’s remaining claims involve, inter alia, four letters to his mother
that were allegedly seized and censored by prison staff for violating assorted
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No. 07-10066
prison rules. On one of the letters, Berenguel wrote both “Hello Perez” and a
vulgar phrase in reference to defendant Michael Perez, a member of the prison
staff. According to Berenguel, defendant Cynthia Guyer, who was the mailroom
supervisor, allegedly turned the letter over to Perez to provoke Perez into
retaliating against him. Berenguel claims that Perez then filed a disciplinary
charge against him.
The record shows that the district court dismissed Berenguel’s First
Amendment claims with respect to the four letters to his parents on the grounds
that he did not show that his position as a litigant was prejudiced or harmed.
However, the legal standard relied upon by the district court is the standard
applicable to outgoing, legal mail. See Richardson v. McDonnell, 841 F.2d 120,
122 (5th Cir. 1988); Jackson v. Procunier, 789 F.2d 307 (5th Cir. 1986).
Berenguel argues that the district court erred because it mistakenly held him
to that more onerous legal standard than to the standard that is applicable to
outgoing, non-legal mail.
The legal standard applicable to outgoing, non-legal mail is rooted in the
Supreme Court’s holding that censorship of a prisoner’s outgoing mail is justified
only if it furthers an important or substantial government interest unrelated to
the suppression of expression, such as prison security and order, and limits the
First Amendment freedoms no more than necessary to protect the government
interests involved. Procunier v. Martinez, 416 U.S. 396, 413 (1974), modified,
Thornburgh v. Abbott, 490 U.S. 401, 411-13 (1989) (limiting the Martinez strict
scrutiny analysis to outgoing prison mail). In Abbott, the Supreme Court
emphasized that outgoing personal correspondence does not generally pose a
serious threat to prison security and order. Abbott, 490 U.S. at 411. Thus, a
prisoner’s outgoing personal mail is generally unrestricted unless it falls into
readily identifiable categories that present a threat to security and order, such
as, but not limited to, “escape plans, plans relating to ongoing criminal activity,
and threats of blackmail or extortion.” Id. at 412.
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No. 07-10066
Berenguel argues that the district court further erred by failing to
recognize his First Amendment right to make unflattering references to prison
staff in his outgoing, personal mail. In McNamara v. Moody, 606 F.2d 621, 624
(5th Cir. 1979), this court held that a prisoner’s coarse and offensive remarks in
his outgoing personal mail are not inherently breaches of discipline and security.
Thus, censorship for violation of disciplinary rules is properly limited to
communications that relate to more concrete violations such as escape plans,
plans to disrupt the prison system or work routine, or plans for importing
contraband. Id. This court also noted in McNamara that the actual intended
recipient of an inmate’s outgoing personal mail is a factor to consider.
Our review of the record shows that the district court erred by applying
the wrong legal standard in dismissing his First Amendment claims related to
the four letters to his parents. The district court should have engaged in both
a Martinez and a McNamara analysis relative to those claims. By failing to do
so, the district court also erred in dismissing Berenguel’s retaliation claims
against Guyer and Perez since that dismissal was intertwined with the court’s
use of an incorrect legal standard in dismissing Berenguel’s First Amendment
claims.
The district court did apply the proper standard with respect to
Berenguel’s First Amendment claims that defendants seized 15 pieces of legal
mail that Berenguel tried to send to grievance officers within the prison.
Berenguel alleged an obstruction of correspondence claim relative to that mail,
but did not discuss in his brief other than in a conclusory manner whether he
had a specific legal position that was prejudiced or damaged by defendants’
actions. Richardson, 841 F.2d at 122.
As Berenguel further argues, the district court also erred in holding that
42 U.S.C. § 1997e prohibited Berenguel from recovering any damages without
a prior showing of a physical injury. This court has recently held that § 1997e
does not bar a prisoner’s right to recover nominal or punitive damages for a
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No. 07-10066
constitutional violation. Hutchins v. McDaniels, 512 F.3d 193, 196-98 (5th Cir.
2007).
Berenguel has not, however, shown that the district court erred in
dismissing his claims of supervisory liability. This court holds that supervisory
officials may be held liable only if: (1) they affirmatively participated in acts that
caused constitutional deprivations; or (2) implemented unconstitutional policies
that causally resulted in a plaintiff’s injury. Mouille v. City of Live Oak, Texas,
977 F.2d 924, 929 (5th Cir. 1993). With respect to the former, Berenguel
admitted in his brief that none of the defendants who held supervisory positions
were personally involved in any of the constitutional violations of which he
complained. Berenguel also did not contend in his brief that the supervisory
defendants implemented unconstitutional policies. His argument that the
district court erred in dismissing his claims is without merit.
The district court also did not err in dismissing Berenguel’s request for
injunctive relief. Berenguel offered nothing more in his brief than a conclusory
assumption that he might suffer some unspecified future harm. See Geiger v.
Jowers, 404 F.3d at 375.
For the foregoing reasons, we AFFIRM in part and VACATE in part the
judgment of the district court, and REMAND this case for further proceedings
consistent with this opinion. We express no opinion as to the ultimate
disposition of the case.
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