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should not be published and is not precedent except under the limited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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-40258

Summary Calendar

THOMAS DUNN

Plaintiff-Appellant

v.

JAMES PRINCE; JAMES MCCORMICK

Defendants-Appellees

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 5:07-CV-117

Before JONES, Chief Judge, and DENNIS and HAYNES, Circuit Judges.

PER CURIAM:*

Thomas Dunn, previously a Texas pretrial detainee at the Bowie County

Correctional Center (BCCC), appeals the district court’s dismissal of his

42 U.S.C. § 1983 complaint pursuant to FED. R. CIV. P. 12(b)(6) and 56. This

court reviews the grant of a motion to dismiss pursuant to Rule 12(b)(6) and a

motion for summary judgment de novo. See Shanbaum v. United States, 32 F.3d

180, 182 (5th Cir. 1994); Fraire v. City of Arlington, 957 F.2d 1268, 1273 (5th Cir.

United States Court of Appeals

Fifth Circuit

F I L E D

April 16, 2009

Charles R. Fulbruge III

Clerk
No. 08-40258

2

1992). In reviewing a Rule 12(b)(6) motion, the “court accepts all well-pleaded

facts as true, viewing them in the light most favorable to the plaintiff,” but “the

plaintiff must plead ‘enough facts to state a claim to relief that is plausible on

its face.’” In re Katrina Canal Breaches Litigation, 495 F.3d 191, 205 (5th Cir.

2007)(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955,

1974 (2007)), cert. denied, 128 S. Ct. 1230, and cert. denied, 128 S. Ct. 1231

(2008). Summary judgment is proper “if the pleadings, the discovery and

disclosure materials on file, and any affidavits show that there is no genuine

issue as to any material fact and that the movant is entitled to judgment as a

matter of law.” Rule 56(c). Conclusional allegations, speculation, improbable

inferences, or a mere scintilla of evidence are insufficient to defeat a summary

judgment motion. Michaels v. Avitech, Inc., 202 F.3d 746, 754-55 (5th Cir. 2000).

Dunn contends that the district court erred in rejecting his claims that he

was falsely imprisoned when he was held in the BCCC prior to his trial, despite

the fact that Bowie County had contracted with the Texas Department of

Criminal Justice-Institutional Division (TDCJ) to house convicted prisoners in

that facility. Dunn also maintains that he was falsely imprisoned for a second

time when he was released from custody under felony bond conditions despite

the fact that he was arrested for driving while intoxicated, which constitutes a

misdemeanor under state law. The district court properly held that to the extent

that Dunn was challenging the state criminal proceedings, he should have filed

a pretrial habeas petition. See Dickerson v. Louisiana, 816 F.2d 220, 223-24 (5th

Cir. 1987). To the extent that Dunn’s claims arise under § 1983, he is not

entitled to relief. Dunn has no right to complain about the facility in which he

is incarcerated absent an assertion that he had suffered more severe conditions

as a form of punishment. See Tighe v. Wall, 100 F.3d 41, 42 (5th Cir. 1996)(per

curiam); Parker v. Carpenter, 978 F.2d 190, 192-93 (5th Cir. 1992). With respect

to the bond conditions, Dunn has admitted that the county officials were aware

at the time of his arrest that he was a recidivist DWI defendant, raising his
No. 08-40258

3

misdemeanor offense to a felony; he has not established that the State was

bound by his arrest report to consider his offense as a misdemeanor.

Dunn maintains that he was denied an attorney for nearly two months

after his arrest. Such a claim sounds in habeas and should be raised in such a

motion. See Dickerson, 816 F.2d at 223-24. Even if the claims were properly

presented under § 1983, Dunn has not alleged a constitutional violation. See

Berkemer v. McCarty, 468 U.S. 420, 428-29 (1984); United States v. Gouveia,

467 U.S. 180, 187-89 (1984).

Dunn asserts that his incarceration in a TDCJ contract facility violates the

Thirteenth Amendment. He has not established that he was subjected to

involuntary servitude or slavery. See Watson v. Graves, 909 F.2d 1549, 1552

(5th Cir. 1990). Dunn’s conclusional assertion that he was “sold” into slavery

because Bowie County receives payment from the TDCJ for all individuals held

in the BCCC is insufficient to establish that Dunn is entitled to relief. See

Michaels, 202 F.3d at 754-55.

Dunn contends that the BCCC officials violated his right to correspond

freely about religious matters with prisoners at other facilities. Although Dunn

is a pretrial detainee, the BCCC’s rules on correspondence apply to him with

equal force. See Jones v. Diamond, 594 F.2d 997, 1014 (5th Cir. 1979). The

BCCC’s requirement that inter-facility mail requires the consent of both

wardens is a reasonable restriction on First Amendment rights. See Turner v.

Safley, 482 U.S. 78, 81-82, 91 (1987). The fact that Dunn’s letters concerned

religious matters does not provide greater protections under the Constitution.

See Powell v. Estelle, 959 F.2d 22, 23-24 (5th Cir. 1992), superseded by statute as

stated in Diaz v. Collins, 114 F.3d 69 (5th Cir. 1997).

Dunn has asserted that the district court should not have considered his

allegations that he was denied free medical care, meals, or a safe environment

during his stay in the Bowie County jail. He has thus waived these claims of

constitutional violations. Moreover, because Dunn has not identified any error
No. 08-40258

4

in the district court’s rejection of the merits of the claims, he has abandoned any

such contention. See Brinkmann v. Dallas County Deputy Sheriff Abner,

813 F.2d 744, 748 (5th Cir, 1987).

Dunn attempts to raise claims on behalf of numerous “innocent tax

payer[]s” incarcerated in the BCCC before being convicted. Because he does not

challenge the district court’s conclusion that he lacked standing to raise claims

for other pretrial detainees, such claims are abandoned. See id.

Dunn asserts that the appellees wrongly stated that he had not moved for

summary judgment. Although he did request such relief, he did not establish

“that there is no genuine issue as to any material fact and that [he] is entitled

to judgment as a matter of law.” Rule 56(c). To the extent that Dunn is

asserting that the district court erred in not addressing his motion for a

declaratory judgment, the court in fact held that he was not entitled to

declaratory relief because he was no longer incarcerated at the BCCC. See

Herman v. Holiday, 238 F.3d 660, 665 (5th Cir. 2001). Dunn has not established

that he was entitled to counsel in the district court. See Ulmer v. Chancellor,

691 F.2d 209, 212 (5th Cir. 1982).

Dunn has not established that he has pleaded plausible claims or that

genuine issues of material fact exist precluding summary judgment in favor of

the defendants. See Rule 56(e); Katrina Canal Breaches, 495 F.3d at 205. As a

result, the judgment of the district court is AFFIRMED.