IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-20272

Summary Calendar

BORIS TWAIN CLEWIS,

Plaintiff-Appellant

v.

LIEUTENANT BILLY D. HIRSCH; LIEUTENANT KEVIN G. MAYFIELD, 

Assistant Warden; LAWANDA M. HIGHTOWER, Property Officer; INEEQUA 

A. FISHER, Property Officer; ROBERT H. QUADA, JR., Librarian 3; 

CAPTAIN GREGORY M. VAUGHN; MAJOR CORTNEY SCOTT; CAPTAIN 

BRUCE D. BAGGETT; GARLAND R. GOODRUM, Correction Officer V; 

MAJOR ROBERT J. JENKINS, JR.; CAPTAIN KENDRIC M. DEMYERS; 

TERRILYN H. MERCHANT, Corrections Officer; LIEUTENANT J. G. 

BURLESON; LIEUTENANT B. D. RIGSBY; UNKNOWN SELMAN, Assistant 

Warden; VICKIE BARROW,

Defendants-Appellees

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:13-CV-2308

Before REAVLEY, PRADO, and GRAVES, Circuit Judges. 

PER CURIAM:*

Boris Twain Clewis, Texas prisoner # 694570, appeals the summary 

judgment dismissal of his civil rights complaint filed against numerous 

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

October 31, 2017

Lyle W. Cayce

Clerk

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No. 16-20272

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employees of the Texas Department of Criminal Justice (TDCJ) in their official 

and individual capacities while he was housed on the Wynne Unit. Clewis 

alleged constitutional and Americans with Disabilities Act (ADA) claims 

stemming from prison cell searches during which his personal and legal 

property were allegedly wrongfully confiscated, damaged, and destroyed. He 

has also moved this court to remand for a Spears1 hearing, to supplement the 

record, to appoint counsel, and for extraordinary relief and judicial notice 

requiring employees of the Coffield Unit to preserve his confiscated property. 

We review the district court’s summary judgment dismissal de novo. See

McFaul v. Venezuela, 684 F.3d 564, 571 (5th Cir. 2012). As an initial matter, 

Clewis attempts to adopt and incorporate his opposition to the motion for 

summary judgment by reference and asks this court to take judicial notice of 

that pleading. Even a pro se litigant, however, may not incorporate prior 

pleadings by reference. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 

1993). We therefore do not consider the arguments that Clewis has attempted

to incorporate into his brief.

Clewis argues that the district court erred in granting summary 

judgment on his claim that the destruction of legal materials pertaining to his 

father’s succession constituted a denial of his right of access to the courts. The 

district court found that summary judgment was appropriate as a matter of 

law because the legal matters at issue did not relate to his underlying 

conviction or conditions of confinement. Clewis argues that this court in 

Jackson v. Procunier, 789 F.2d 307, 311 (5th Cir. 1986), held that a prisoner’s 

right of adequate access to the courts is not limited to matters concerning his 

conviction and confinement but also includes the right to litigate general civil 

matters, not limited to divorce proceedings and small civil claims.

 

1 Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).

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“[P]risoners have a constitutional right of access to the courts.” Bounds 

v. Smith, 430 U.S. 817, 821 (1977). Although “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) (footnotes omitted). This right 

“encompasses only a reasonably adequate opportunity to file nonfrivolous legal 

claims challenging their convictions or conditions of confinement.” Jones 

v. Greninger, 188 F.3d 322, 325 (5th Cir. 1999). 

In Jackson, this court declined to hold that the right of access to the 

courts was limited to constitutional, civil rights, and habeas claims, and stated 

that “reasonable access to the courts must include access in general civil legal 

matters including but not limited to divorce and small claims.” 789 F.2d at 

311 (internal quotation marks and citation omitted). However, after Jackson, 

the Supreme Court rendered Lewis v. Casey, 518 U.S. 343, 355 (1996), in which 

the court held that Bounds “does not guarantee inmates the wherewithal to 

transform themselves into litigating engines capable of filing everything from 

shareholder derivative actions to slip-and-fall claims.” “Impairment of any 

other litigating capacity is simply one of the incidental (and perfectly 

constitutional) consequences of conviction and incarceration.” Lewis, 518 U.S. 

at 355. Thus, to recover for a denial of access to the courts, the prisoner must 

establish that “an actionable claim [involving a challenge to a sentence or 

conditions of confinement] which he desired to bring has been lost or rejected, 

or that the presentation of such a claim is currently being prevented . . . .” Id. 

at 356.

Consequently, as a matter of law, the destruction of legal materials 

pertaining to Clewis’s work on his father’s succession does not rise to the level 

of a denial of the right of access to the courts. See id. Clewis’s additional 

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contention that the prison law library did not have the books he desired on 

probate and tax law also does not rise to the level of a constitutional 

deprivation, as there is no “abstract, freestanding right to a law library or legal 

assistance,” and an inmate cannot demonstrate the requisite actual injury for 

an access-to-the-courts claim “simply by establishing that his prison’s law 

library or legal assistance program is subpar in some theoretical sense.” Lewis, 

518 U.S. at 351. To the extent that Clewis also takes issue with the district 

court’s finding that he was denied access to the law library on only a couple of 

occasions, he does so in a conclusional fashion, and he does not allege that this 

adversely affected his ability to proceed with a pending case regarding his 

underlying conviction or conditions of confinement. See id. at 356. Clewis has 

not shown that there is a genuine dispute as to any material fact with regard 

to his access-to-the-courts claims, and the defendants were entitled to 

judgment as a matter of law. See FED. R. CIV. P. 56(a).

Clewis has inadequately briefed, and thus waived, review of the district 

court’s dismissal of the remainder of his claims regarding the liability of the 

defendants in their official and individual capacities for the damage and 

destruction of his property both randomly and pursuant to prison policy; the 

denial of due process during his disciplinary proceedings; the denial of due 

process in securing storage space for his excess property; the denial of his 

Eighth Amendment rights in refusing him a cart to transport his property; the 

denial of his retaliation claims; and the denial of his ADA claims. See Yohey, 

985 F.2d at 225; Brinkmann v. Dallas Cnty. Deputy Sheriff Abner, 813 F.2d 

744, 748 (5th Cir. 1987). 

AFFIRMED; MOTIONS TO REMAND FOR A SPEARS HEARING, TO 

SUPPLEMENT THE RECORD, TO APPOINT COUNSEL, AND FOR 

EXTRAORDINARY RELIEF AND JUDICIAL NOTICE (ENTITLED 

“EMERGENCY MOTION FOR A PRESERVATION ORDER”) DENIED. 

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