### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 17

- 11230

MICHAEL JOSEPH DEMARCO , JR.,
Plaintiff

–

Appellant ,

versus LORIE DAVIS , Director , Texas Department of Criminal Justice, Correctional Institutions Division ; JEREMY J. BYNUM , Officer; JOSEPH C. BOYLE , Disciplinary Captain,
Defendants

– Appellees

.

Appeal from the United States District Court for the Northern District of Texas

Before SMITH , DUNCAN , and ENGELHARDT , Circuit Judges

. JERRY E. SMITH, Circuit Judge : Michael DeMarco, Jr., an inmate at the James V. Allred Unit of the Texas Department of Criminal Justice (“TDCJ”) , brought suit under 28 U.S.C. § 1983 against Jeremy Bynum, an officer at the Allred Unit; Joseph Boyle, a disciplinary captain; and William Stephens, the former director of the TDCJ. United States Court of Appeals Fifth Circuit 

### FILED January 28, 2019

Lyle W. Cayce Clerk Case: 17-11230 Document: 00514812117 Page: 1 Date Filed: 01/28/2019No. 17

- 11230

2 The district court dismissed the complaint w ith prejudice under 28 U.S.C. § 1915A(b)(1) for failure to state a claim upon which relief may be granted. We affirm in part and reverse in part and remand.

I. Bynum allegedly confiscated certain personal property from DeMarco’s cell. At a dis ciplinary proceeding, DeMarco was found guilty of threatening Bynum and was placed in solitary confinement. DeMarco sued , claiming that the seizure of his legal and religious materials had occurred without due pro

cess of la w, had deprived him of access to the courts, and had bur dened his free exercise of religion. He further alleged that Bynum had con fiscated his prop

erty and instituted the disciplinary action in retaliation for exercising First Amendment rights. Moreov er, DeMarco insisted that Ste phens and Boyle were deliberately indifferent to th o se constitutional viola tions. Finally, DeMarco claimed that Boyle had denied him due process at the disciplinary hearing by tampering with evidence and prohibiting him from call ing his own witnesses. The district court severed DeMarco’s challenge to the validity of the disciplinary hearing and dismissed the remainder of the com plaint for failure to state a claim. See i d. § 1915A(b)(1)

.
II. This court reviews dismissals under § 1915A(b)(1) de novo , using th e standard applied under Federal Rule of Civil Procedure 12(b)(6)

. Legate v. Liv

ingston , 822 F.3d 207, 210 (5th Cir. 2016). “ Under that standard, a complaint will survive dismissal for f ailure to state a claim if it contains sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Id. (internal quotation marks and citation omitted). A claim is facially plausi

ble “when the plaintiff pleads factual content that allows the court to draw the Case: 17-11230 Document: 00514812117 Page: 2 Date Filed: 01/28/2019No. 17

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3 reasonable inference that the defendant is liable for the misconduct alleged .” 1

“ We do not accept as true conclusory allegations, unwarranted factual infer

ences, or legal conclusions.” 2

A. DeMarco a vers that he was denied due process at the disciplinary pro

ceeding because Boyle tampered with the witness statements and prevented him from calling witnesses. The district court severed th o se claims because they were potentially cognizable under 28 U.S.C. § 2254. 3 Because DeMarco does not contest that decision on appeal, he has waived any challenge to it

. See United States v. Thibodeaux , 211 F.3d 910, 912 (5th Cir. 2000) (per curiam)

. He must there fore raise th o se claims in a habeas corpus petition , not under § 1983.

B. DeMarco claims that his personal property was seized without due pro

cess. Nevertheless, “a deprivation of a constitutionally protected property interest caused by a state employee’s random, unauthorized conduct does not gi ve rise to a § 1983 procedural due process claim, unless the State fails to provide an adequate postdeprivation remedy .” Allen v. Thomas , 388 F.3d 147, 149 (5th Cir. 2004) (quoting Zinermon v. Burch, 494 U.S. 113, 115 (1990)). Conduct is not “random or u nauthorized” if the state “delegated to [the defen

dants] the power and authority to effect the very deprivation complained of.”

1 Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly , 550 U.S. 544, 556 (2007) ).

2 Gentilello v. Rege , 627 F.3d 540, 544 (5th Cir. 2010) (citation omitted) (quoting Plotkin v. IP Axess Inc., 407 F.3d 690, 696 (5th Cir. 2005)).

3 See Heck v. Humphrey , 512 U.S. 477, 481 (1994) (citing Preiser v. Rodriguez, 411 U.S. 475, 488

– 90 (1973)) (“[H]abeas corpus is the exclusive remedy for a state pr isoner who challenges the fact or duration of his confinement and seeks immediate or speedier release.”). Case: 17-11230 Document: 00514812117 Page: 3 Date Filed: 01/28/2019No. 17

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4 Id. (quoting Burch , 494 U.S. at 138). DeMarco has not alleged that the state delegated to Bynum the authority to confiscate his personal property. Instead , DeMarco contends that his property was seized in violation of TDCJ policy. Additionally , Texas’s tort of conversion provides an adequate post

- deprivation remed y for prisoners claim

ing loss of property without due process. Murphy v. Collins , 26 F.3d 541, 543

– 44 (5th Cir. 1994)

. Accordingly, DeMarco’s due process claim is not cog nizable under § 1983.

C. The dis trict court correctly dismissed DeMarco’s claim that he was denied access to the courts. Prisoners have “a constitutionally protected right of access to the courts” that is rooted in the Petition Clause of the First Amend

ment and the Due Process Clause of the Fourteenth Amen dment

. See Brewer v. Wilkinson , 3 F.3d 816, 82 0

– 2 1 (5th Cir. 1993) (citations omitted). But that right is not without limit. Rather, “ it encompasses only ‘ a reasonably adequate opportunity to file nonfrivolous legal claims challenging [ an inmate’s ] conv ic

tions or conditions of confinement .’” 4 To prevail on such a claim, a prisoner must demonstrate that he suffered “actual injury” in that the prison “hindered his efforts” to pursue a nonfrivolous action

. 5 A prisoner must therefore describe the predicate claim with sufficient detail to show that it is “arguable” and involves “more than hope.” Christopher v. Harbury , 536 U.S. 403, 416 (2002)

.

4 Johnson v. Rodriguez , 110 F.3d 299, 310

– 11 (5th Cir. 1997) (quoting Lewis v. Casey , 518 U.S. 343, 356 (1996) ).

5 See Lewis , 518 U.S. at 349, 351 (holding that the actual

- injury requirement “derives ultimately from the doctrine of standing ” ); Ruiz v. United States , 160 F.3d 273, 275 (5th Cir. 1998) (per curiam) (finding that the inmate failed to show actual injury because his underlying claims were frivolous). Case: 17-11230 Document: 00514812117 Page: 4 Date Filed: 01/28/2019No. 17

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5 DeMarco maintains that the confiscation of his legal materials prevent ed him from filing a timely petition for writ of certiorari. But he has not identified any actionable claim that he would have raised. Consequently , he has failed
to establish the actual harm necessary to support his denial

- of

- access claim. 6

D. T h e district court properly dismissed DeMarco’s retaliation claim. Under the First Amendment, a prison official may not harass or retal iate against an inmate “for exercising the right of access to the courts, or for com

plaining to a supervisor about a guard’s misconduct.” Woods v. Smith , 60 F.3d 1161, 1164 (5th Cir. 1995) (citations omitted). “To prevail on a claim of retal i

ation, a prisoner must establish (1) a specific constitutional right, (2) the defen

dant ’ s int ent to retaliate against the prisoner for his or her exer cise of that right, (3) a retaliatory adverse act, and (4) causation.” 7 Caus a tion, in turn, requires a showing that “ but for the retaliatory motive the com plained of incident . . . would not hav e occurred.” McDonald , 132 F.3d at 231 (quoting Johnson , 110 F.3d at 310)

. That standard places a “significant bur den” on an inmate as the court must regard claims of retaliation “with skep ticism.” Woods , 60 F.3d at 1166 (citation omitted) . Mere conclus ional allega tions are insufficient to support a retaliation claim. Id. Instead, an inmate “must pro

duce direct evidence of motivation” or “allege a chronology of events from which retaliation may plausibly be inferred.” Id. (citations omitted).
DeMarco maintains that Bynum retaliated against him by confiscating his personal property and filing a false disciplinary action . In his brief,

6 The district court held that despite the seizure of his legal materials, DeMarco suffered no harm because he was represented by counsel. We may nonetheless affirm on any basis supported by the record. LLEH, Inc. v. Wichita Cty. , 289 F.3d 3 58, 364 (5th Cir. 2002).

7 Morris v. Powell , 449 F.3d 682, 684 (5th Cir. 2006) (quoting McDonald v. Steward, 132 F.3d 225, 231 (5th Cir. 1998)). Case: 17-11230 Document: 00514812117 Page: 5 Date Filed: 01/28/2019No. 17

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6 DeMarco states that the retaliation was motivated by the submission of an earlier griev ance on June 10, 2013. But in his answers to the district court’s questionnaire, DeMarco maintained that he had filed the relevant grievance on May 27, 2013. He also alleged that the retaliation occurred because he had offered to serve as a witness against Bynum in 2012. Thi s changing tale is conclusional at best. Because DeMarco has not demonstrated retaliatory intent through direct evi dence or a clear chron ology of events, he has failed to establish the second and fourth elements of his retaliation claim. See McDonald , 132 F.3d at 231.

E. DeMarco posits that Bynum burdened the free exercise of relig ion by

con fiscating his religious materials. To fall within the purview of the Free Exercise Clause, a claimant must possess a sincere religious belief. 8 A n inm ate retains his right to the free exercise of religion, subject to reasonable restric

tions stemming from legitimate penological concerns. See O’Lone v. Estate of Sha bazz , 482 U.S. 342, 349 (1987). In evaluating the reasonableness of a prison policy, we consider (1) the existence of a “valid, rational connection ” between the state action and the “ legitimate governmental interest put for

ward to justify it ; ” (2) the availability of alternative means of exercising the right; (3) the impact an accommodation will have on guards, other inmates, and the alloca tion of prison resources; and ( 4) the absence of alternatives that

“ fully accom modate [] the prisoner’s right [] at de minimis cost to valid

8 See Wisconsin v. Yoder , 406 U.S. 205, 216 (1972) (noting that “philosophical and per sonal . . . belief does not rise to the demands of the Religion Clauses”); Soc’ y of Sep a rationists, Inc. v. Herman , 939 F.2d 1207, 1212 (5th Cir. 1991), on reh’g , 959 F.2d 1283 (5th Cir. 1992) (citation omitted) (“ [T] he Free Exercise query is whether this particular plaintiff h olds a sincere belief that the affirmation is religious .”) ; Ferguson v. Comm’ r , 921 F.2d 588, 589 (5th Cir. 1991) (per curiam) (citations omitted) (“ The protection of the free exercise clause extends t o all sincere religious beliefs.”). Case: 17-11230 Document: 00514812117 Page: 6 Date Filed: 01/28/2019No. 17

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7 penological interests. ” 9 A plaintiff bears the burden of proving that a prison policy , as applied, is not reasonably related to legitimate penological objectives

. 10 Moreover, prison officials are entitled to “substantial deference” in the exercise of their profes

sional judgment

. S ee Overton , 539 U.S. at 132 (citations omitted)

. Neverthe

less, the government “ must do more . . . than merely show ‘ a formalistic logical connection between [its policy] and a penological objective. ’” Prison Legal News , 683 F.3d at 215 (quoting Beard v. Banks, 548 U.S. 521, 535 (2006)). Though a plaintiff shoulders the ultimate burden of persuasion, 11 the gov ern ment must identify “‘ a reasonable relation, ’ in light of the ‘ importance of the rights [here] at issue. ’” 12 In dismissing DeMarco’s claim, the district court explained that he had failed to name any religious belief or practice that was negatively impacted. The court suggested that because DeMarco had not requested the return of his religious materials, his professed faith was likely a sham. We disagree. Though DeMarco did not specify that he was a Christian, he averred that

9 Turner v. Safley , 482 U.S. 78, 89

– 91 (1987) (citations omitted)

. See also Davis v. Davis , 826 F.3d 258, 265 (5th Cir. 2016).

10 See Prison Legal News v. Livingston , 683 F.3d 201, 215 (5th Cir. 2012); see also Overton v. Bazzetta , 539 U.S. 126, 132 (2003) (citations omitted ) (“ The burden . . . is not on the State to prove the validity of prison regulations but on the prisoner to disprove it.”).

11 See Turner v. Cain , 647 F. App’x 357, 366

– 68 (5th Cir. 2016) (Wiener, J., concurring)

. 12 Prison Legal News , 683 F.3d at 215 (quoting Beard, 548 U.S. at 535); see also Mayfield v. Texas Dep’t Of Criminal Justice , 529 F.3d 599, 612 (5th Cir. 2008) (reversing the district court’s grant of summary judgment in favor of the TDCJ because “none of the penological interests provided by the TDCJ necessarily support[ed] limiting access to rune literature in the prison library”); Thompson v. Solomon , No. 92

- 8240, 1993 WL 209926, at *2 (5th Cir. June 2, 1993) (per curiam ) (concluding that the state’s “cursory response . . . provide[d] an insufficient factual basis” to dismiss plaintiff’s free

- exercise claim); Rudolph v. Locke , 594 F.2d 1076, 1077 (5th Cir. 1979) (per curiam) (holding that the state’s “bare assertion ” that its regulation was an appropriate means of maintaining security was “not enough” to deny relief on plaintiff’s First Amendment claims). Case: 17-11230 Document: 00514812117 Page: 7 Date Filed: 01/28/2019No. 17

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8 Bynum had confiscated copies of the Bible and religious books by Max Lucado, Charles Swindoll, and Joel Osteen. Moreover, DeMarco asserted that the tak

ing of those books had placed a substantial burden on his practice of reading religious literature. His decision to seek damages

— rather than the return of his books

— does not indicate that his religious belief is disingenuous . Indeed, his books were alleg edly destroyed , leaving damages as his only recourse

. Hence, with the benefit of liberal construction, DeMarco’s pro se pleadings establish that the seizure of his books burdened a sincere religious practice. See Woodfox v. Cain , 609 F.3d 774, 792 (5th C ir. 2010)

. Furthermore, the defendants have not “put forward” any legitimate gov

ernment interest justifying the alleged seizure of DeMarco’s religious mate

rials. Turner , 482 U.S. at 89

. Rather, as DeMarco alleges, Bynum merely stated that “he could take whatever he wanted whenever he wanted.” T he dis trict court therefore erred in dismissing DeMarco’s free exercise claim against Bynum in his individual capacity

. 13 On remand, the court should determine whether the a lleged confiscation was reasonably related to a legiti

mate penological objective

. Nevertheless, the district court properly dismissed DeMarco’s free exer

cise claim against Boyle and Stephens. “[T]o state a cause of action under sec

tion 1983, the plaintiff must identify defendants who were either personally involved in the constitutional violation or whose acts are causally connected to the constitutional violation alleged.” 14 DeMarco does not aver that Boyle or

13 DeMarco’ s c laim against Bynum in his official capacity is barred by sovereign immunity. See Kentucky v. Graham , 473 U.S. 159, 169 (1985) (citations omitted) (“[A] bsent waiver by the State or valid congressional override, the Eleventh Amendment bars a damages action against a State in federal court. This bar remains in effect when State officials are sued for damages in their official capacity .”).

14 Woods v. Edwards , 51 F.3d 577, 583 (5th Cir. 1995) (per curiam) (citing Lozano v. Smith , 718 F.2d 756, 768 (5 th Cir. 1983) )

. Case: 17-11230 Document: 00514812117 Page: 8 Date Filed: 01/28/2019No. 17

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9 Stephens personally confiscated his religious materials. Instead, he claims that they caused the violation by failing to train their subordinates and by ignoring previous complaints about Bynum. But DeMarco does not specify any other examples of comparable violations. Nor does he explain how better train

ing might have prevented the alleged violation. Such conclus ional allega tions are insufficient to show that the alleged violation resulted from Boyle and Ste

phens’ actions. DeMarco has thus failed to state a claim against them

. The judgment of dismissal is AFFIRMED in part and REVERSED in part and REMANDED . We place no limitation on the matters that the district court can address on remand , and we do not mean to indicate how the court should rule on any issue. Case: 17-11230 Document: 00514812117 Page: 9 Date Filed: 01/28/2019