Johnson v. TX Bd of Cr Justice ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 2, 2008
No. 07-20396
Summary Calendar Charles R. Fulbruge III
Clerk
ALAN WADE JOHNSON
Plaintiff-Appellant
v.
TEXAS BOARD OF CRIMINAL JUSTICE, Sued in its Official Capacity; BRAD
LIVINGSTON, Executive director, Texas Department of Criminal Justice, Sued
in His Individual and Official Capacity; DOUGLAS DRETKE, Division Director,
Texas Department of Criminal Justice, Correctional Institutions Division, Sued
in His Individual Capacity; RICK THALER, Region I Director, Texas
Department of Criminal Justice, Correctional Institutions Division, Sued in His
Individual Capacity; THOMAS J PRASIFKA, Senior, Warden, Texas
Department of Criminal Justice, Correctional Institutions Division, John M
Wynne Unit, Sued in His Individual and Official Capacity; NATHANIEL
QUARTERMAN, Division Director, Texas Department of Criminal Justice,
Correctional Institutions Division, Sued in His Official Capacity; ROBERT
TREON, Region I Director, Texas Department of Criminal Justice, Correctional
Institutions Division, Sued in His Official Capacity
Defendants-Appellees
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:05-CV-3705
No. 07-20396
Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
Alan Wade Johnson, Texas prisoner # 660513, appeals the district court’s
grant of the defendants’ FED. R. CIV. P. 12(b)(6) motion to dismiss and the
dismissal of his 42 U.S.C. § 1983 suit. Johnson’s complaint arises from the
enforcement of prison policies restricting telephone usage and the amount of
property inmates may store in their cells. Johnson argues that the defendants
violated his constitutional rights by limiting telephone privileges to one five-
minute collect call every 90 days and by limiting storage space for legal and
religious property.
Johnson disavows any claim for compensatory damages; in any event, he
could not recover such damages because he has not alleged a physical injury.
See Geiger v. Jowers, 404 F.3d 371, 374-75 (5th Cir. 2005). Johnson also fails to
allege facts which would support a claim for punitive damages because his
allegations do not show that the defendants’ actions, which implemented prison
policies, were motivated by evil intent or that the defendants acted with reckless
indifference to Johnson’s constitutional rights. Smith v. Wade, 461 U.S. 30, 56
(1983).
Johnson asserts that he did not sue the defendants in their official
capacity, and thus the district court need not have ruled that any such claims
were barred by Eleventh Amendment immunity. Thus, we need not address
that determination by the district court. Johnson has abandoned any claim
arising under international law because he has failed to adequately brief the
issue. See Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748
(5th Cir. 1987).
*
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. 07-20396
In district court, Johnson challenged the restrictions on telephone use
embodied in Administrative Directive 03.90. We note that Johnson’s arguments
concerning telephone usage are likely moot in light of the provisions of TEX.
GOV’T CODE § 495.025, enacted in May 2007 and due to be implemented soon.
In any event, Johnson’s constitutional challenges to the provisions of
Administrative Directive 03.20, as well as his constitutional challenges to the
restrictions on storage space for legal and religious property, embodied in
Administrative Directive 03.72, fail because the prison policies are reasonably
related to legitimate penological interests. See Turner v. Safley, 482 U.S. 78, 89
(1987).
To the extent that Johnson argues that the restriction of storage space
denies him access to the courts, his contention is without merit because he does
not show that his position as a litigant was or will be prejudiced. See Lewis v.
Casey, 518 U.S. 343, 350-53 (1996). Johnson’s retaliation claim fails because he
has not presented any direct evidence of retaliatory motivation, nor has he
alleged a chronology of events from which retaliatory motivation may be
plausibly inferred. See Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995).
Rather, he alleges that the defendants enforced prison policy. This argument
does not support a claim for retaliation.
Johnson’s separate storage space claim based on the Religious Land Use
and Institutionalized Persons Act is without merit because he has not
demonstrated that the storage policy has substantially burdened his religious
exercise. See Adkins v. Kaspar, 393 F.3d 559, 570-71 (5th Cir. 2004).
The district court did not abuse its discretion by denying Johnson’s request
for class certification. See Bell Atlantic Corp. v. AT&T Corp., 339 F.3d 294, 301
(5th Cir. 2003); Floyd v. Bowen, 833 F.2d 529, 534 (5th Cir. 1987).
Johnson asks that we reinstate his state law claims. Because the district
court dismissed all of Johnson’s federal claims, the dismissal of any remaining
state law claims was not an abuse of discretion. See Bass v. Parkwood Hosp.,
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No. 07-20396
180 F.3d 234, 246 (5th Cir. 1999). We recognize that the dismissal of any such
state claims was without prejudice to their assertion in the appropriate state
court. See id.
Accordingly, the judgment of the district court is AFFIRMED.
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