* Pursuant to 5 T H 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this opinion should not be published and is not precedent except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 5 TH Cir. R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________________

No. 01-41003

_______________________________

TOMMIE J. DENSON,

Plaintiff-Appellant,

versus

AKBAR N SHABAZZ, Etc; ET AL

Defendants

AKBAR N. SHABAZZ, Chaplain; STANLEY CULYAR, Chaplain,

Defendants-Appellees.

_________________________________________________

Appeal from the United States District Court

for the Eastern District of Texas

(6:99-CV-663)

_________________________________________________ June 6, 2002

Before HIGGINBOTHAM, WIENER, and BENAVIDES, Circuit Judges.

PER CURIAM * :

Plaintiff-Appellant Tommie Denson, Texas Prisoner # 687907,

appeals the district court’s dismissal at summary judgment of his

42 U.S.C. § 1983 claims against fellow inmate Vernon Wheeler,

various prison Chaplains, and several other Texas Department of1 Although the policy was not reduced to writing until

October 1999, affidavits from the Chaplains and prison officials

establish that t he policy has been in effect since 1996. In

relevant part, Chapla incy Manual policy 6.02 reads “Jumah prayer

service is restricted in attendance to Muslims who have completed

Shahada with the approval of the Muslim Chaplain.”

2 Apparently, Shahada training instructs Muslims in the Five

Pillars of Islam. According to Islamic faith, this knowledge is

required before a potential disciple is allowed to partake in Jumah

servi ces. Chaplain Cuyler’s affidavit indicates that the policy

was furnished by the Department of Chaplaincy and Chaplain Shabazz,

the Muslim Chaplain.

2 Criminal Justice (TDCJ) officials, for violating his First

Amendment right to the free-exercise of his religion . Agreeing

with the results reached by the trial court, we affirm.

I.

FACTS AND PROCEEDINGS

In July 1999, inmate Denso n filed a formal request with

Chaplain Stan Cuyler to have his religious preference changed from

Baptist to Muslim. Denson also requested that he be allowed to

attend Friday Jumah (faith) services and be given a pork-free diet,

both consistent with the tenets of Islam. Chaplain Cuyler referred

Denson to inmate Wheeler, who, at the time, was the designated

Islamic coordinator/volunteer for that particular prison unit.

Wheeler informed Denson that, according to TDCJ Chaplaincy Manual

policy 6.02, 1 he would have to complete Shahada training before he

could attend Jumah services and before he could be granted a porkfree diet. 2

According to su mmary judgment evidence in the form of3 Evidently, Shahada “training” and Shahada “classes” are not

synon ymous: An adherent may demonstrate his knowledge of the

Shahada without attending formal classes.

4 According to Denson’s complaint in his Step 1 diet

grievance, he was offered a vegetarian diet until the official

faith change.

5 Denson’s Step 2 Jumah grievance was denied for the same

reasons specified in the response to his Step 1 grievance.

3 affidavit s from Wheeler and the Chaplains involved, Wheeler and

Cuyler interviewed Denson to determine his readiness for the Jumah

service. After listening to Denson’s answers to Wheeler’s

questions, Cuyler determined that Denson was not familiar with the

Five Pillars of Islam. Cuyler informed Denson that before he could

attend Jumah services, he would hav e to attend Shahada classes,

which were regularly scheduled and taught by inmate Wheeler.

Following this interview and decision, Denson filed two Step

1 grievances with the TDCJ protesting (1) his exclusion from Jumah

services and (2) his ineligibility for a pork-free diet. Denson’s

grievance regarding Jumah services was denied on the grounds that

priso n policy required him to finish Shahada training before

attending the servic es; 3 his grievance regarding his diet was

denied on the grounds that his diet could be changed only after he

completed S hahada training and had his official prison documents

altered to reflect his faith change. 4 Denson then filed a Step 2

grievance protesting the Step 1 decision regarding his exclusion

from Jumah services, 5 but he did not appeal the adverse Step 1 diet

decision.6 By December 1999, Denson had finished his Shahada classes,

had been put on the Jumah services list, had been given a pork-free

diet, and had his religious designation officially changed to

Muslim on his prison documents.

7 Chaplain Akbar Shabazz was the Muslim Chaplain for the

prison unit, under whose direction and auth ority inmate Wheeler

acted as the Islamic volunteer/coordinator.

4 I n November 1999, proceeding p ro se and in forma pauperis

,

Denson brought suit against Wheeler, the Chaplains, and other TDCJ

officials alleging unconstitutional deprivation of his freeexercise right. 6 Pursuant to 28 U.S.C. § 636(c), the case was

referred to a United States Magistrate Judge to conduct all

proceedings in the case. After the S pears hearing, the court

dismissed, with prejudice, the claims against Chaplain Groom,

Wardens Upshaw and Moore, and Grievance Administrator Schumacher,

because those defendants were not personally in volved in the

alleged deprivation and Denson presented no evidence to suggest a

causal connection between those defendants’ act ions and the

purportedly unconstitutional treatment he had received. The court

determined that Denso n’s allegations could only state a legally

cognizable claim against the remaining defendants, Chaplains Cuyler

and Shabazz, 7 and inmate Wheeler.

Denson attempted an immediate appeal of these dismissals, but

his appeal was denied by a panel of this court for lack of

jurisdiction because th e trial court’s dismissal order did not

adjudicate all of Denson’s claims against all the par ties.

Subsequently, the remaining three defendants submitted motions for8 482 U.S. 78, 89 (1987) (stating that when assessing whether

prison regula tion is valid, courts must consider whether the

regulation is reasonably related to “legitimate penological

interes t,” considering the following four factors: (1) whether a

valid, rational connection exists between the regulation and the

governmental interest; (2) whether alternative means of exercising

the right exist; (3) the impact accommodation of th e asserted

constitutiona l right will have on guards, inmates, and the

allocation of prison resources; and (4) availability of other

a lternatives to the regulation that would accommodate th e

constitutional right with de minimus cost to penol ogical

interests).

5 summary judgement. Wheeler moved for dismissal on grounds that he

was not a state actor, submitting his own affidavit as well as the

affidavit of Kenneth Reynolds, t he Senior Chaplain for Denson’s

prison unit, both of which averred that Wh eeler’s duties were

administrative and that he did not exercise any personal

discretionary or decision-making authority over other inmates. On

the bases of th ese unopposed and uncontradicted affidavits, the

trial court determined that Wheeler was not a state actor and

dismissed him from the suit.

Chaplains Cuyler and Shabazz moved for summary judgment on the

alternative grounds that (1) the pr ison policy pursuant to which

they acted was not unconstitutional and (2) regardless of its

constitutionality, they were entitled to qualified immunity. The

court, applying the Supreme Court’s four-prong analysis in Turner

v. Shafley

, 8 fo und that the Chaplaincy Manual policy requiring

Shahada training before inclu sion in Jumah services was

constitutional. Additionally, the court concluded that even

assuming, arguendo

, tha t the Chaplains violated Denson’s free-9 Fed.R.Civ.P. 56(c); C elotex Corp. v. Catrett

, 477 U.S. 317,

322 (1986).

10 A nderson v. Liberty Lobby, Inc.

, 477 U.S. 242, 248 (1986).

11 See Olabisiomotosho v. City of Houston

, 185 F.3d 521, 525

(5th Cir. 1999).

12 Celotex Corp. , 477 U.S. at 323.

6 exercise right by excluding him from Ju mah services until he

completed Shahada training, they still enjoyed qualified immunity

from Denson’s § 1983 claim because the right was not clearly

established and they acted in an objectively reasonable manner.

Denson timely appealed.

II.

ANALYSIS

A. Standard of Review

We review the district court’s ruling on a motion for summary

judgment de novo

, applying the same standard as the district court.

A motion for summary judgment is properly granted only if there is

no genuine issue as to any material fact. 9 An issue is material if

its resol ution could affect the outcome of the action. 1 0 In

deciding whether a fact issue has been created, we must view the

facts and the inferences to b e drawn therefrom in the light most

favorable to the nonmoving party. 11

The standard for summary judgment mirrors that for judgment as

a matter of law. 12 Thus, the court must review all of the evidence

in the record, but make no credibility determinations or weigh any13 R eeves v. Sanderson Plumbing Products, Inc.

, 530 U.S. 133,

150 (2000).

14 Id. at 151.

15 Siglar v. Hightower , 112 F.3d 191, 193 (5th Cir. 1997).

16 Black v. Warren , 134 F.3d 732, 733-34 (5th Cir. 1998).

7 evidence. 13 In reviewing all the evidence, the court must disregard

all evidence favorable to the moving party that the jury is not

r equired to believe, and should give credence to the evide nce

f avoring the nonmoving party as well as that evidence support ing

the moving party that is uncontradicted and unimpeached. 14

The trial court dismissed Denson’s claims against Groom,

Upshaw, Moore, and Schumacher under 28 U.S.C. §§ 1915 (e)(2)(B)(i)

and (ii). Dismissals for filing frivolous claims pursuant to §

1915 (e)(2)(B)(i) are reviewed for abuse of discretion. 1 5

Dismissals for failure to state a claim pursuant to § 1915

(e)(2)(B)(ii) are reviewed de novo

, the same standar d used to

evaluate dismissals pursuant to Fed. R. Civ. P. 12(b)(6). 16 As the

trial court ruled that Denson’s allegations against these four

defendants were frivolous and failed to state a claim, we review

the entire issue under our de novo standard out of an abundance of

caution, but we note that we would reach the same result un der

either standard of review.

B. Dismissal of Groom, Upshaw, Moore, and Schumacher

The trial court dismissed Denson’s claims against these four

defendants because it found that those claims had no basis in law17 Thompkins v. Belt , 828 F.2d 298, 303 (5th Cir. 1987).

18 Albright v. Longview Police Dep’t

, 884 F.2d 835, 838 (5th

Cir. 1989) (delineating three tests to determine the sufficiency of

the nexus: (1) state creates a legal framework that governs the

private conduct; (2) state delegates traditional powers to a

private party; or (3) state establishes “symbiotic relatio nship”

with private party).

8 or fact. After the S pears hearing, the court determined that these

four defendants were supervisors and did not personally participate

in the conduct that allegedly deprived Denson of his free-exercise

right. Under established § 1983 law, a supervisory official cannot

be held vicariously liable for the actions of subordinates, and can

be held personally liable only if (1) the supervisor was personally

involved in the constitutional depr ivation or (2) a sufficient

causal connection exists between the supervisor’s allegedly

wrongful conduct and the constitutional deprivation. 17 Here, Denson

did not allege any personal involvement by these defendants and

proceeded solely on a vicarious liability theory. The trial court

properly dismissed the claims against these defendants.

C. Dismissal of inmate Wheeler

Denson appeals the trial court’s ruling that Wheeler was not

a state actor. Generally, private individuals like Wheeler are not

subject to § 1983 liability because they are not acting under color

of state law. If there is a sufficient nexus between the private

actor’s allegedly unconstitutional conduct and state involvement,

however, the private actor may be deemed a state actor for § 1983

purposes. 18 Denson contends that Wheeler, along with teaching the9

Shahada classes and serving as the Islamic Coordinator for the

prison unit, was empowered by the Chaplai ns with decision-making

authority over other inmates, making him a state actor for § 1983

purposes.

Despite his insistent allegations and subjective opinions,

Denson offers no summary judgment evidence to support his claim.

Moreover, he offers no evidence to counter the affidavits submitted

by Wheeler to the effect that he (Wheeler) had only administrative

responsibilities. The affidavit submitted by Senior Chaplain

Reynolds states that “Wheeler doe s not exercise any personal

discretion of or over whom [sic] is selected to attend or

participate in Islamic religious activities or any other religious

activities or progra ms. I make those decisions personally in

accordance with [TDCJ policies].” The affidavit submitted by

defendant Chaplain Cuyler states that Wheeler interviewed Denson in

Cuyler’s presence, but that the determination of Denson’s fitness

for Jumah services was made by Cuyler, apparently based on Denson’s

answers to Wheeler’s questions.

In short, all competent summary judgment evidence shows that

Wheeler’s duties were limited to non-discretionary, administrative

details regarding the Muslim community and teaching Shahada classes

to inmates who needed instruction. Denson produces nothing in

response except for his own conclusional allegations that the

affidavits were perjured and that Wheeler excluded him from Jumah

services. As the evidences establishes that Wheeler had no19 503 F. Supp. 1265 (S.D. Tex. 1980), a ff’d in part and

vacated in part

, 679 F.2d 1115, am ended in part and vacated in

part , 688 F.2d 266 (5th Cir. 1982).

20 Green v. McKaskle

, 788 F.2d 1116, 1122-23 (5th Cir. 1986)

(“[R]emedial court orders per s e, apart from the independent

constitutional grounds affirmed there, cannot serve as a

substantive basis for a § 1983 claim for damages because such

orders do not create ‘rights, privileges, or immunities secured by

the Constitution and laws’”) (citation omitted).

10 discretionary or decision-making authority, and indeed did not make

any decision regarding Denson’s readiness for Jumah services,

Wheeler cannot be considered a state actor. Therefore, the trial

court’s dismissal of the claims against Wheeler was proper.

D. Summary Judgment in Favor of Chaplains Cuyler and Shabazz

As an initial matter, we address Denson’s contention that the

trial court erred by not addressing his claim that the Chaplains

violated the consent de cree of R uiz v. Estelle 19 by placing an

inmate (Wheeler) in a position of authority over other inmates.

Apart from the fact that the trial court expressly included a

discussion of the Ruiz decree in its Memorandum Opinion and Order

of Dismissal, Denson’s argument on this issue still fails because

(1) Wheeler was not in a position of authority, and (2) violations

of a remedial decree alone cannot form the basis of a § 1983 suit. 20

In addition to his argument regarding the Ruiz decree, Denson

submits three other frivolous appellate issues. First, the trial

court properly dismissed Denson’s free-exercise claim against the21 The evidence establishes that Denson never filed a Step 2

grievance protesting the denial of a pork-free diet. As he did not

exhaust all of his administrative remedies, that cla im is not

properly before the cou rt. B ooth v. Churner

, 532 U.S. 731, 740

(2001) (“Congress’s imposition of an obviously broader exhaustion

requirement makes it highly implausible that it meant to give

prisoners a strong inducement to skip the administrative process by

simply limiting prayers for relief to money da mages not offered

though administrative grievance mechanisms.

... Thus, we think that

Congress has mandated exhaustion clearly enough regardless of the

relief offered through administrative procedures.”)

22 B urch v. Coca-Cola Co

., 119 F.3d 305, 319 (5th Cir. 1997).

23 28 U.S.C. § 636(c).

11 Chaplains resulting from the prison’s denial of a pork-free diet. 21

S econd, Denson raises an Fourteenth Amendment Equal Protection

Clause claim for th e first time on appeal. Even assuming Denson

c ould make a cogent Fourteenth Amendment argument, which he d oes

not, this issue is not properly before us and we do not consider

it. 2 2 Finally, citing 28 U.S.C. § 636, Denson frivolously argues

that the district court should have ruled on his objections to the

magistrate judge’s dismi ssal orders. The case was properly

transferred to a United States Magistrate Judge pursuant to § 636

(c), and any appeals from the magistrate judge’s ruling are taken

“directly to the appropriate United States court of appeals

... in

the same manner as an appeal from any other judgment of a district

court.” 23

Turning now to the cognizable aspects of Denson’s § 1983 claim

against Cuyler and Shabazz, we note initially that Denson does not

present a cogent argument regarding the constitutionality of24 482 U.S. 78.

25 In O ’Lone v. Shabazz

, 482 U.S. 342 (1987), the Supreme

Court extended and applied the Turner test to prisoners’ freeexercise claims, upholding a general prison work pol icy that

prevented prisoners assigned to certain work details from attending

Jumah services. In that case, the Court dealt with a policy

created for penological purposes that had the effect of prohibiting

particular inmates from participating in Jumah services. Here, in

contrast, we deal with a prison Chaplaincy policy created by

Chaplains for the purpose of ensuring orderly and bona fide

religious conversions. Cf. Williams v. Lara , 52 S.W.3d 171, 187-

12 Chaplaincy Manual p olicy 6.02, which required Shahada training

before attending Jumah services. Instead he urges only that the

Chaplains have not demonstrated that the policy was “not facially

unconstitutional.” Nevertheless, we address the free-exercise

claim, noting that Denson’s § 1983 action a gainst Cuyler and

Shabazz requires a two-part inquiry: First, we must determine if

Denson’s allegations state a constitutional violation; if so, we

must then assess whether Cuyler and Shabazz are nonetheless

entitled to qualified i mmunity. The trial court analyzed the

constitutionality vel non of Chaplaincy Manual policy 6.0 2 under

the test promulgated by the Supreme Court in T urner v. Shafley

. 24

Although we do not now address this aspec t of the trial court’s

decision, we note that it is far from clear that this situation

——

in w hich Denson alleges that sectarian rules, enforced by the

Muslim Chaplain in accordance with the Muslim faith, adhered to by

the other Muslims in the prison, and embodied in the TDCJ

Chaplaincy Manual, conflict with his right freely to exercise his

faith —— should even be analyzed under the Turner framework. 2588, n. 10-12 (listing federal appellate court cases and noting that

not all alleged constitutional violations in prisons have been

analyzed under the Turner test).

26 S ee Harper v. Harris County

, 21 F.3d 597 (5th Cir. 1994)

(qualified immunity shields a state actor conduct as long as the

conduct (1) does not violate a clearly established right and (2)

was objectively reasonable under existing law).

13 In any case, we need not delve into the constitutionality vel

non of the policy today. As Denson has now been allowed entrance

into Jumah services, has received his pork-free diet, and has had

his official religious designation changed, his suit for monetary

damages against the defendants must still overcome the Chaplains’

qualified immunity defense. Our review of the record and the

applicable case law convinces us that Denson’s allegations fail the

two-part qualified immunity inquiry. Even when the facts are

considered in the light most favorable to Denson, under which we

would assume arguendo that he establishes a constitutional

violation, he still cannot show that the right was “clearly

established” or that Chaplains Cuyler and Shabazz failed to act in

an objectively reasonable manner. 26 It is not clearly established

that requiring an inmate to undertake specific religious training,

consistent with the dictates of the religion under the auspices of

that religion’s Chaplain, before he can change his official

religious designation and gain full admittance to all services of

his newly designated religion, violates the free-exercise clause.

To the contrary, the policy and the classes could b e viewed as a

method of facilitating an inmate’s free exercise of religion within27 Although Denson purports to support his position by

demonstrating that other inmates were allowed into Jumah services

without Shahada classes, the summary judgment evidence shows that

those inmates demonstrated Shahada knowledge without taking the

classes, and hence were not similarly situated with Denson. S ee

also supra note 3.

14 the confines of a prison, taking into account the penological and

disciplinary concerns of prison officials, the Chaplains, and

fellow worshippers. Moreover, Chaplains Cuyler and Shabazz did not

act arbitrarily and selectively towards Denson. He was subjected

to the same policy, furnished by the Department of Chaplaincy and

the Muslim Chaplain himself, that is applicable to all those

desiring to attend the Jumah services, and he was even offered

private tutor ing by the Chaplains to help him fulfill his

requirements. 27 Under these circumstances, their conduct was

objectively reasonable.

III.

CONCLUSION

F or the foregoing reasons, summary judgment in favo r

defendants is

AFFIRMED.