Rose vs. Woods, (5th Cir. 1996)
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* Pursuant to Local Rule 47.5, the Court has determine d that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 95-40759 Summary Calendar MICHAEL ROSE, Plaintiff-Appellant, versus WOODS, Warden; M. DIAZ, Assistant Warden; EASON, Captain; INGLE, Captain; CANO, Case Manager, Defendants-Appellees. Appeal from the United States District Court for the Southern District of Texas (C-95-CV-144) July 29, 1996 Before GARWOOD, WIENER and PARKER, Circuit Judges. * PER CURIAM: Plaintiff-appellant Michael Rose (Rose), a prisoner confined in the Texas Department of Criminal Justice (TDCJ), McConnell Unit, appeals the dismissal under 28 U.S.C. § 1915(d) of his pro se, in forma pauperis civi l rights suit against several TDCJ McConnell Unit personnel.
RoseÂ’s complaint concerning an eight-day lock-down was properly dismissed under Sandin v. Conner , 115 S.Ct. 2293, 2300-02 (1995). S ee also Luken v. Scott , 71 F.3d 192, 193 (5th Cir. 1995).
Similarly, claims tha t grievance procedures and TDCJ rules and p rior court remedial orders were not followed were likewise properly d ismissed. S ee Woods v. Edwards , 51 F.3d 577, 582 (5th Cir. 1995); M urphy v. Collins , 26 F.3d 541, 543 (5th Cir. 1994).
Rose§ 19 97(e) does not change that result. RoseÂ’s purely conclusory RICO claims were also properly dismissed as frivolous. No abuse of discretion is shown in the transfer of all these claims from the Eastern to the Southern District of Texas, where the McConnell Unit is located, in t he failure to appoint counsel for Rose, or in the denial of injunctive relief. No error is shown as to any of these matters.
Finally, we consider RoseÂ’s claim relating to not being allowed to attend religious services. Significant restrictions on such attendance must have some relation to legitimate penological interests. M uhammad v. Lynaugh , 966 F.2d 901, 902 (5th Cir. 1992).
The district court dismissed this claim, concluding that Rose “fails to allege that he had been denied reasonable opportunities to worship.” However, the dismissal was without a hearing under Spears v. McCotter , 766 F.2d 179 (5th Cir. 1985), or any questionnaire, and no leave to amend was afforded. While Rose’s pleading is somewhat summary in this respect, it does not facially appear wholly unl ikely that with further exploration and specificity Rose could state a claim in this regard; it is unclear at this stage of the lawsuit whether Rose’s alleged exclusion from Jumu’ah Friday service (or services) has or had any logical relation to a legitimate state peno logical interest. Under the circumstances, the district court’s dismissal of this claim was premature and Rose should have been afforded an opportunity to offer a more detailed set of factual allegations (or a Spears hearing or questionnaire) in this respect. S ee Eason v. Thaler , 14 F .3d 8, 9-10 (5th Cir. 1994). We do not preclude section 1915(d) —— or other pre-trial —— dismissal of this claim on further development following remand.
Accordingly, the distri ct courtÂ’s dismissal of RoseÂ’s claim concerning not being allowed to att end religious services is vacated and that claim is remanded fo r further proceedings consistent herewith; in all other respects, the district courtÂ’s judgment is affirmed.
AFFIRMED in part; VACATED and REMANDED in part
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This document cites
- U.S. Court of Appeals for the Fifth Circuit - Daniel Joseph Luken, Plaintiff-Appellant, v. Wayne Scott, Et Al., Defendants-Appellees., 71 F.3d 192 (5th Cir. 1995)
- U.S. Court of Appeals for the Fifth Circuit - Christopher J. Murphy, Plaintiff-Appellant, v. J.A. Collins, Director, Texas Department of Criminal Justice, Institutional Division, Et Al., Defendants-Appellees., 26 F.3d 541 (5th Cir. 1994)
- US Code - Title 28: Judiciary and Judicial Procedure - 28 USC 1915 - Sec. 1915. Proceedings in forma pauperis
- U.S. Court of Appeals for the Fifth Circuit - Norman R. Spears, Plaintiff-Appellant, v. O.L. Mccotter, Director, Texas Department of Corrections, Et Al., Defendants-Appellees., 766 F.2d 179 (5th Cir. 1985)
- U.S. Court of Appeals for the Fifth Circuit - Al Aswad T.A. Muhammad, A/K/a Alvin Jones, and Jihaad A.M.E. Saahir, Plaintiffs-Appellants, v. James A. Lynaugh, Director, Texas Department of Criminal Justice, Institutional Division, Et Al., Defendants-Appellees. No. 91-4425. Summary Calendar., 966 F.2d 901 (5th Cir. 1992)
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