Wilbert Johnson v. John Rupert , 540 F. App'x 442 ( 2013 )

Case: 12-40598 Document: 00512400527 Page: 1 Date Filed: 10/08/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 8, 2013
No. 12-40598
Summary Calendar Lyle W. Cayce
Clerk
WILBERT C. JOHNSON,
Plaintiff-Appellant
v.
JOHN RUPERT; MAJOR JODY C. HEFNER; DWAYNE E. DEWBERRY;
CHRISTOPHER A. HOLMAN; FRANCIS E. SWEENEY; G. LIVELY; RICK
THALER; BRAD LIVINGSTON,
Defendants-Appellees
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:11-CV-446
Before KING, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
Wilbert C. Johnson, Texas prisoner # 613845, appeals the dismissal of his
civil rights complaint as frivolous and for failure to state a claim, pursuant to 28
U.S.C. § 1915A(b)(1). We review such a dismissal de novo. Ruiz v. United
States, 160 F.3d 273, 275 (5th Cir. 1998). “In determining whether to grant a
motion to dismiss, the district court must not go outside the pleadings and must
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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No. 12-40598
accept all well-pleaded facts as true, viewing those facts most favorably to the
plaintiff.” Scanlan v. Texas A&M University, 343 F.3d 533, 536 (5th Cir. 2003).
Johnson alleged that he was being routinely, unwillingly, and
unconstitutionally strip searched and required to “squat and cough” in the
presence of female officers when going to and from work at the Michael Unit
Packing Plant. The Fourth Amendment provides the proper framework in which
to analyze such a claim. Moore v. Carwell, 168 F.3d 234, 237 (5th Cir. 1999).
Johnson alleged sufficient facts that, if accepted as true, stated a Fourth
Amendment claim that is plausible on its face. See Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009); Moore, 168 F.3d at 237; Hutchins v. McDaniels, 512 F.3d 193,
195-98 (5th Cir. 2007); Waddleton v. Jackson, 445 F. App’x 808, 809 (5th Cir.
2011). Instead of taking Johnson’s allegations as true, the district court looked
outside of the pleadings and improperly relied on the Assistant Warden’s
testimony at the Spears1 hearing to conclude that the searches were justified.
See Norton v. Dimazana, 122 F.3d 286, 292 (5th Cir. 1997); see also Scanlan, 343
F.3d at 536; Eason v. Holt, 73 F.3d 600, 601 (5th Cir. 1996). Based on this, the
court concluded, prematurely at this point, that neither the squat and cough
policy nor the searches were unconstitutional. Accordingly, we vacate the
dismissal as frivolous and for failure to state a claim of Johnson’s Fourth
Amendment challenge to the strip searches and of his claim that the squat and
cough policy was unconstitutional and vacate the dismissals of Warden Rupert,
Major Hefner, Lt. Holman, and Sgt. Sweeney and remand the case for further
proceedings.
Johnson does not challenge the dismissal of the defendants who were in
the chain of command and denied his grievance. Although he asserts claims
related to searches conducted after the Spears hearing and the dismissal of his
complaint, he does not challenge the denial of his motion to amend to raise those
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Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).
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No. 12-40598
claims. Although pro se briefs are afforded liberal construction, Haines v.
Kerner, 404 U.S. 519, 520 (1972), even pro se litigants must brief arguments to
preserve them. Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993). When an
appellant fails to make or brief any arguments challenging the basis for the
district court’s decisions, he abandons any arguments regarding that ruling. See
Yohey, 985 F.2d at 224-25; Brinkmann v. Dallas County Deputy Sheriff Abner,
813 F.2d 744, 748 (5th Cir. 1987). Accordingly, the judgment is affirmed as to
the dismissal of Brad Livingston, Rick Thaler, Warden Dewberry, and Ginger
Lively and as to the denial of the motion to amend.
Additionally, Johnson contends that he alleged violations of the Fifth and
Fourteenth Amendments, but he has not briefed any arguments or cited any
relevant cases in support of this contention. Accordingly, he has abandoned this
argument. See Yohey, 985 F.2d at 224-25; Brinkmann, 813 F.2d at 748.
Johnson’s motion for the appointment of appellate counsel is denied. See
Schwander v. Blackburn, 750 F.2d 494, 502 (5th Cir. 1985).
AFFIRMED IN PART, VACATED AND REMANDED IN PART; MOTION
DENIED.
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