* Pursuant to Local 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 95-10316

Summary Calendar

_______________

DANNY RAY EASON,

Plaintiff-Appellant,

versus

WARDEN THALER, ET AL.,

Defendants-Appellees.

____________________________________________________

Appeal from the United States District Court for the 

Northern District of Texas

_____________________________________________________

January 17, 1996

Before GARWOOD, WIENER and PARKER, Circuit Judges.*

PER CURIAM:

Plaintiff-appellant Danny Ray Eason (Eason), an inmate

confined in the Texas Department of Criminal Justice-Institutional

Division (TDCJ), brought this suit against five TDCJ officials

pursuant to 42 U.S.C. Section 1983 alleging violations of his civil

rights. Eason appeals the district court’s grant of summary

judgment for the defendants-appellees.
2

Facts and Procedural Background

Eason’s claims can be traced to a disturbance that occurred at

TDCJ’s Preston E. Smith Unit (Smith Unit), where Eason was

confined, on November 12, 1992. Sometime in the evening on that

date, a potentially explosive situation developed in the recreation

yard of the Smith Unit. Large groups of African-American and

Hispanic inmates became hostile towards one another, and prison

officials averted a dangerous situation by quickly segregating the

Hispanic and African-American inmates and moving all of the

prisoners, in stages, back into their cells. During this episode

in the yard, Eason——apparently an African-American——had been in the

Smith Unit’s recreation room. He and the other prisoners in the

recreation room were likewise directed to return to their

respective wings, and subsequently to their cells. Warden Richard

Thaler, who was senior warden at the Smith Unit on November 12,

1992, contacted the TDCJ regional director’s office and it was

determined that several buildings of the unit should be immediately

“locked-down” pending an investigation into this disturbance.

During the lockdown, the impacted inmates were essentially confined

to their cells. The wing of the building in which Eason was housed

remained on lockdown until December 7, 1992, for a duration of

approximately twenty-six days. Because the inmates were not

permitted to leave their cells——except for periodic showers——meals,

library books, medical assistance and all other necessities and

services had to be brought to the inmates’ cells. Eason’s claims
3

arise out of this lockdown and events which occurred during the

twenty-six day period. 

Eason filed this action under 42 U.S.C. Section 1983 in the

United States District Court for the Northern District of Texas,

Lubbock Division. The district court dismissed Eason’s claims

pursuant to 28 U.S.C. Section 1915(d). In Eason v. Thaler, 14 F.3d

8 (5th Cir. 1994), this Court vacated the district court’s

judgment, finding that Eason’s section 1983 claims might not have

been frivolous if he had been given the opportunity to develop

these claims through the use of a questionnaire or a hearing

(Spears hearing) as provided for in Spears v. McCotter, 766 F.2d

179 (5th Cir. 1985). On remand, the district court required Eason

to answer a questionnaire and held a Spears hearing so that he

might develop the facts related to his claims. The parties filed

cross-motions for summary judgment, and, in accordance with the

district court’s order, they also filed post-Spears hearing

summaries of the facts and their arguments. On March 16, 1995,

United States Magistrate Judge J.Q. Warnick, Jr. entered his

findings, conclusions and recommendation (Magistrate’s findings)

based on all of the evidence. Expressly adopting the Magistrate’s

findings, the district court granted summary judgment for the

defendants and dismissed Eason’s complaint with prejudice on March

24, 1995.

Eason filed a timely notice of appeal.
4

Discussion

We review the district court’s grant of summary judgment de

novo. Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir.) (citing

International Shortstop, Inc. v. Rally’s, 939 F.2d 1257, 1263 (5th

Cir. 1991)), cert. denied, 113 S.Ct. 82 (1992). Summary judgment

is proper if the moving party demonstrates the absence of a genuine

issue of material fact, a showing which entitles the movant to

summary judgment as a matter of law. Fed. R. Civ. P. 56(c); see

also Anderson v. Liberty Lobby, Inc., 106 S.Ct. 2505, 2506-2514

(1986). If the movant produces evidence tending to show that there

is no genuine issue of material fact, the nonmovant must then

direct the court’s attention to evidence in the record sufficient

to establish the existence of a genuine issue of material fact for

trial. Celotex Corp. v. Catrett, 106 S.Ct. 2548, 2552 (1986). In

this analysis, we review the facts and draw all inferences most

favorable to the nonmovant. Herrera v. Millsap, 862 F.2d 1157,

1159 (5th Cir. 1989). However, mere conclusory allegations are not

competent summary judgment evidence, and such allegations are

insufficient, therefore, to defeat a motion for summary judgment.

Topalian, 954 F.2d at 1131.

In his first point of error, Eason contends that his

constitutional rights were violated when he was placed on lockdown

without notice or an opportunity to be heard. Eason cites the

Supreme Court’s decision in Hewitt v. Helms, 103 S.Ct. 864 (1983),

in support of this contention. Hewitt involved the segregation of
5

a Pennsylvania state prisoner from the general prison population

during the investigation into his role in a prison riot. The Court

held that, “It is plain that the transfer of an inmate to less

amenable and more restrictive quarters for nonpunitive reasons is

well within the terms of confinement ordinarily contemplated by a

prison sentence.” Id. at 869. The Court further concluded that

such “administrative segregation” in the prison context——segregation

“used to protect the prisoner’s safety, to protect other inmates

from a particular prisoner, to break up potentially disruptive

groups of inmates, or simply to await later classification or

transfer”——did not implicate an interest independently protected by

the Due Process Clause. Id. at 869-870. However, after examining

the Pennsylvania statutes and regulations governing the

administration of state prisons, the Court found that Pennsylvania

had gone beyond the creation of simple procedural guidelines;

instead, the Pennsylvania regulations used language “of an

unmistakably mandatory character”, prohibiting the employment of

administrative segregation absent specific circumstances. Id. at

871. The Court held that Pennsylvania had vested in Helms a statecreated liberty interest in remaining in the general prison

population, thereby affording Helms the minimum protections of the

Due Process Clause. Id.

Recently, however, the Supreme Court has reconsidered the step

it took in Hewitt, observing that “the search for a negative

implication from mandatory language in prisoner regulations has

strayed from the real concerns undergirding the liberty protected
1 We note, however, our observation in Orellana v. Kyle, No.

95-50252, slip op. (5th Cir. Aug. 11, 1995), that: 

“Although Sandin cites with approval cases in which it

was held that state law could create a constitutional

liberty interest in good-time credits, or release on

parole, it is difficult to see that any other

deprivations in the prison context, short of those that

clearly impinge on the duration of confinement, will

hence-forth qualify for constitutional ‘liberty’ status.”

Id. at 5952-5953 (internal citations and footnote

omitted).

6

by the Due Process Clause.” Sandin v. Conner, 115 S.Ct. 2293, 2300

(1995). In Sandin, the Supreme Court considered a state inmate’s

due process challenge to his punitive segregation from the general

prison population, and concluded:

“The time has come to return to the due process

principles we believe were correctly established and

applied in [Wolff v. McDonnell, 94 S.Ct. 2963 (1974)] and

[Meachum v. Fano, 96 S.Ct. 2532 (1976)]. Following

Wolff, we recognize that States may under certain

circumstances create liberty interests which are

protected by the Due Process Clause. But these interests

will be generally limited to freedom from restraint

which, while not exceeding the sentence in such an

unexpected manner as to give rise to protection by the

Due Process Clause of its own force, nonetheless imposes

atypical and significant hardship on the inmate in

relation to the ordinary incidents of prison life.” Id.

(internal citations omitted).

In this case, however, we do not reach the impact of Sandin on

the methodology, developed in Hewitt and its progeny, for finding

a state-created liberty interest.

1 Eason has failed to identify a

single statute, regulation or even internal TDCJ policy directive

as evidence of a state-created liberty interest in the present

case. Instead, Eason suggested at his Spears hearing that he was

entitled to official notice of the reasons for, and expected

duration of, the lockdown, and that he had not received such
7

notice. In an effort to substantiate this assertion, Eason asked

Warden Richard Thaler (Thaler) about this purported requirement of

formal notice. Thaler replied that there was no such requirement

under TDCJ regulations or policy, and that any progressive schedule

distributed——by word of mouth or otherwise——to the inmates during a

lockdown represented nothing more than a voluntary effort on the

part of prison officials to provide incentive for cooperation

between officials and inmates. Eason likewise failed to produce

any evidence in support of his contention that it was TDCJ policy

to collect the identification cards of prisoners involved in a

disturbance so as to limit lockdown status to only those inmates

who had been involved in the disturbance. In sum, there is an

absence of any evidence of a state-created liberty interest

protected under the Due Process Clause in the present case. 

After conducting the Spears hearing in this case, the

magistrate judge concluded that Eason’s due process rights had not

been violated. First, the magistrate judge found no evidence to

indicate that Eason’s segregation from the general prison

population constituted punishment; this established, the defendantprison officials did not violate Eason’s constitutional rights by

the lockdown. Wilson v. Seiter, 111 S.Ct. 2321 (1991); Mitchell v.

Sheriff’s Department, Lubbock County, Texas, 995 F.2d 60 (5th Cir.

1993). Second, the magistrate found that the lockdown was

instituted so as to protect the security and integrity of the

prison unit, and to protect the prisoners from each other, pending

completion of the investigation into the November 12, 1992
8

disturbance. The magistrate judge noted the Supreme Court’s

conclusion that procedural safeguards required by the Constitution

are relaxed with regard to prison lockdowns when the welfare and

security of an entire prison, or any part thereof, are threatened.

Hewitt, 103 S.Ct. at 473-475. 

We find that, while Eason has alleged in a conclusory manner

that the lockdown was imposed for punitive reasons, he failed to

offer evidence that the lockdown was instituted out of any concerns

other than safety and prison security. Additionally, we find that

racial tension was at a high level as a result of the confrontation

between African-American and Hispanic inmates on November 12, and

that this hostility among inmates, and also between inmates and

correctional officers, resulted in the lockdown of Eason’s wing of

J-1 Building of the Smith Unit pending an investigation into the

causes of the disturbance. We further find that Eason has produced

no evidence that the lockdown violated TDCJ regulations or any

Texas statute. Even accepting as true Eason’s assertions that he

was innocent of any involvement in the November 12 disturbance,

Eason has raised no issue of fact which would require trial on the

merits of his due process claim.

In his second point of error, Eason alleges that he was

deprived of his constitutional right to nutritionally adequate

meals during the lockdown because numerous meals contained pork,

which he, as a Muslim, could not eat. To comply with the

Constitution, inmates must receive “reasonably adequate” food.

George v. King, 837 F.2d 705, 707 (5th Cir. 1988) (citations
9

omitted). Additionally, inmates retain the constitutional right to

practice their religious beliefs; “Restrictions thereon must be

reasonably related to legitimate penological interests.” Muhammad

v. Lynaugh, 966 F.2d 901, 902 (5th Cir. 1992) (footnote omitted).

We find that Eason failed to offer any evidence that the meals

he received during this twenty-six day lockdown were nutritionally

or otherwise constitutionally inadequate or improper. At the

Spears hearing, Eason asserted that he received only three hot

meals during the lockdown period, “one on one day and two on that

Friday [preceding the conclusion of the lockdown].” Eason further

testified that, in the twenty-six evening “johnny sack” meals,

every sack contained one peanut butter biscuit, and the second

sandwich in approximately ten of these twenty-six evening meals

featured a meat other than pork. Eason also alleged that the

guards delivering the johnny sacks would defile the contents of

these meals, spitting on sandwiches and kicking these sacks across

the floor; in the course of this lockdown period, Eason contends

that he lost twenty-six pounds. Of these assertions, only his

testimony pertaining to the maltreatment of food has any arguably

direct bearing on his constitutional claim. However, it is clear

from Eason’s Spears hearing testimony that none of the named

defendants are alleged to have participated in this misconduct.

Neither does Eason’s testimony piece together even a claim of

deliberate indifference on the part of any one of the named

defendants. Eason’s appellate briefs offer no help in identifying

the focus of his allegations in this respect because Eason fails to
10

explain how any of the defendants participated in or sanctioned

this purported misconduct. There is no respondeat superior

liability under section 1983. Therefore, we find that Eason has

produced no evidence sufficient to raise a genuine issue of

material fact regarding the liability of the defendants respecting

the nutritional adequacy of his meals during the lockdown.

In support of his claim that the inclusion of pork in his

meals infringed upon his constitutional right to practice his

religious beliefs, Eason attempted to produce evidence that the

defendants knew or had reason to know that he was a practicing

Muslim, and that they nevertheless ignored the dietary mandates of

his religion. Eason’s allegations in this regard are two-pronged.

First, he maintains that the appropriate officials at the Smith

Unit should have been aware of his religious affiliations because

officials at TDCJ’s William P. Hobby Unit (Hobby Unit), his

previous place of incarceration, were aware of, and acted in

accordance with, his Muslim beliefs. Second, Eason implies that he

made his religious orientation known to the appropriate persons in

the Smith Unit. With regard to his first contention, Eason

produced no evidence that his “travel card” indicated that he was

a Muslim prior to December of 1993, long after the lockdown in

question. Nor did he bring forward any evidence that officials in

the Smith Unit, presumably the defendants, should have been aware

of the religious identification he established while incarcerated

at the Hobby Unit on the basis of any other sources of information.

Until December of 1993, Eason’s travel card indicated that he was
2 Even if Eason’s assertions raise a fact-issue as to whether

or not an administrative foul-up occurred regarding the religious

designation on his travel card, this would amount to no more than

a claim of negligence. Such a claim would not support his

allegations of a constitutional violation in this context. George,

837 F.2d at 707.

11

a Baptist, and the Smith Unit officials in a position to

accommodate his religious affiliation——and corresponding dietary

needs——had no reason to believe otherwise.2 As to Eason’s implied

second contention, that he informed the appropriate prison

officials at the Smith Unit of his religious orientation prior to

the lockdown, we find that Eason introduced no evidence to

substantiate this claim. Eason asserts that, prior to the

lockdown, he approached “the doctor” at the Smith Unit for a

dietary card entitling him to pork-free meals. He testified that

this doctor denied the request because he had no medical reason for

such a dietary restriction. Eason further intimated at the Spears

hearing that he made his religious ties known to Sergeant Robert

Buckley, one of the defendants, during the lockdown. However,

Eason also conceded his understanding, at the time he spoke with

the Smith Unit doctor, that he would need to inform the kitchen

captain or the warden in order to obtain a pork free diet. Warden

Thaler clarified that Eason should have spoken with the chaplain in

order to be placed on the list of Muslim inmates at Smith Unit; it

was by speaking to the chaplain that Eason first established his

religious affiliations at the Hobby Unit, so he was clearly aware

of the existence of this channel of communication. Finally, Eason

testified that it was not until June 27, 1993, long after the
12

lockdown at issue, that he first filed an official request at the

Smith Unit concerning the dietary mandates associated with his

religion. Eason has offered no evidence that he told any Smith

Unit official in a position to act on such a communication of his

religious affiliations. We therefore find that Eason has not

raised a fact-issue pertaining to his claim that, during the 1992

lockdown, the defendants violated his constitutional right to

practice his religion by knowingly failing to accommodate Eason’s

affiliation with the Muslim faith. 

In his third point of error, Eason contends that he was denied

his constitutional right of access to the law library during the

lockdown. As we noted in Eason v. Thaler, if Eason was pursuing a

legal action which necessitated his use of the law library and

access to the library was denied, this deprivation could represent

a violation of his constitutional rights. 14 F.3d at 9-10 (citing

Bounds v. Smith, 97 S.Ct. 1491, 1498-1499 (1977)); see also Morrow

v. Harwell, 768 F.2d 619, 622 (5th Cir. 1985). However, we also

recognized that restrictions on direct access to legal materials

may be warranted when prison security is involved. Id. (citing

Caldwell v. Miller, 790 F.2d 589, 606 (7th Cir. 1986)). “While the

precise contours of a prisoner’s right of access to the courts

remain somewhat obscure, the Supreme Court has not extended this

right to encompass more than the ability of an inmate to prepare

and transmit a necessary legal document to a court.” Brewer v.

Wilkinson, 3 F.3d 816, 821 (5th Cir. 1993) (footnote omitted),

cert. denied, 114 S.Ct. 1081 (1994). Finally, to make out a claim
13

that his constitutional right of access to the courts has been

violated, Eason must have demonstrated that his position as a

litigant was prejudiced by his denial of access to the courts.

Walker v. Navarro County Jail, 4 F.3d 410, 413 (5th Cir. 1993). 

Eason testified at the Spears hearing that he was denied

physical access to the prison library during the lockdown. He

further testified that, of the twenty (legal) books he requested

while confined to his cell, he received only sixteen. The prison

librarian testified that Eason requested only twelve books during

the lockdown, and that nine of these were delivered to him. While

the disparity between these numbers is irrelevant, it provides

context to the librarian’s testimony that three of the books

requested by Eason were already checked-out to other inmates.

Eason offered no evidence to suggest that books were denied to him

for reasons other than unavailability. 

Any constitutional issue potentially raised by the prison’s

failure to provide Eason with every (legal) book he requested is of

no consequence, however, in light of Eason’s testimony

demonstrating that he was not prejudiced in any litigation as a

result of this alleged denial of access to the law library during

the lockdown. In answers to a questionnaire and in testimony,

Eason clarified that his denial of access to the courts had only

one impact on litigation in which he was currently involved: he

was delayed in filing a lawsuit under 42 U.S.C. Section 1983 in the

Western District of Texas. Eason testified that he filed this suit

after the lockdown had ended, and that he missed no deadlines in
14

doing so. The lawsuit was subsequently dismissed, but due solely

to Eason’s failure——well after the lockdown ended——to respond to a

motion. Eason has not directed this Court’s attention to any

evidence in the record sufficient to raise a genuine issue of fact

on this claim of denial of access to the prison law library.

In his final point of error, Eason contends that he was

exposed to natural gas during the lockdown as the result of a gas

leak which occurred on November 20, 1992. In his initial appellate

brief, Eason argued that this gas leak constituted gross negligence

on the part of the defendants, for which liability could be imposed

under the Civil Rights Act. In his supplemental brief, Eason

suggested that his exposure to the natural gas constituted cruel

and unusual punishment. 

We hold that Eason was deemed to have abandoned this claim by

not raising it in the brief he submitted to this Court in his

original appeal, Eason v. Thaler, 14 F.3d 8 (5th Cir. 1994). In

that opinion, we considered only those claims presented in Eason’s

complaint which he expressly put before this Court on appeal; we

deemed the other claims presented in his complaint to have been

abandoned. Id. at 9 & n. 1. Eason included an allegation relating

to the November 20 gas leak in his original complaint; he did not,

however, raise this issue in his original appeal to this Court. We

hold that the district court exceeded the scope of the remand in

addressing this abandoned issue. See Daly v. Sprague, 742 F.2d

896, 900-901 (5th Cir. 1984).
3 We do not consider Eason’s claim under section 1983 as

negligence is not a theory for which liability may be imposed under

section 1983. Daniels v. Williams, 106 S.Ct. 662 (1986); Davidson

v. Cannon, 106 S.Ct. 668 (1986); Love v. King, 784 F.2d 708 (5th

Cir. 1986).

15

Furthermore, while it is clear that Eason abandoned his claims

relating to the November 20 gas leak, we note that Eason has

presented no evidence in support of his claim that the prison

officials’ gross negligence in permitting the gas leak to occur

constituted cruel and unusual punishment.3 In a recent opinion,

the Supreme court held that, in order for a prison official to

violate the Cruel and Unusual Punishments Clause, that official

must be “deliberately indifferent” to an inmate’s health or safety.

Farmer v. Brennan, 114 S.Ct. 1970, 1977 (1994). The Court

clarified in Farmer that the test for “deliberate indifference” was

“subjective recklessness as used in the criminal law”. 114 S.Ct.

at 1980.

In the present case, Eason alleges that a gas leak occurred in

his building while repairs were being made to the central heating

system. He testified that officials responded quickly to the

outcry raised by the inmates, releasing the inmates in A-wing——where

the alarm had first been given——within a matter of minutes; as to

the inmates housed in B-wing with Eason, however, prison officials

decided to leave them in their cells, choosing instead to turn on

the exhaust fans and relying on those fans to draw the gas out of

the B-wing cells. Eason further testified that, from the moment he

first detected the gas, he could smell gas in the air for only five

to seven minutes before it was drawn away by the exhaust fans.
16

Conceding that officials reacted to the problem in a reasonable

amount of time, Eason distilled his complaint to the following:

(unnamed) prison officials could have avoided this gas leak, but

they failed to do so. Putting aside that Eason offered no evidence

as to who was responsible for this alleged failure nor how the

unnamed party or parties failed in their duties, the Supreme

Court’s opinion in Farmer clearly dispenses with this claim.

Conclusion

Having concluded that Eason has failed to direct this Court’s

attention to any evidence in the record sufficient to establish the

existence of a genuine issue of material fact for trial, the

judgment of the district court is accordingly

AFFIRMED.