IN THE UNITED STATES COURT OF APPEALS 1

FOR THE FIFTH CIRCUIT 2

_____________________ 3

No. 94-60486 4

_____________________ 5

ADISA R.A.M. AL-RA'ID, a/k/a 6

Thomas E. Jones, 7

Plaintiff-Appellant, 8

v. 9

THOMAS J. INGLE, JR., et al., 10

Defendants-Appellees. 11

__________________________________________ 12

Appeal from the United States District Court 13

for the Southern District of Texas 14

__________________________________________ 15

November 7, 1995 16

Before SMITH, WIENER, and DeMOSS, Circuit Judges. 17

JERRY E. SMITH, Circuit Judge: 18

Adisa Al-Ra'id appeals a summary judgment for the defendants 19

in his 42 U.S.C. § 1983 action involving a confiscation of his 20

religious materials. We affirm. 21

I. 22

Al-Ra'id, a Muslim prisoner in the Texas Department of Crimi23

nal Justice ("TDCJ"), filed a complaint in state court against unit 24

chaplain Thomas J. Ingle, Jr., and Islamic chaplain Eugene Farooq. 25

Al-Ra'id alleged th at on May 9, 1993, the defendants confiscated 261 The defendants we re sued only in their individual capacity. Because

there are no allegations against the defendants in their official capacity, it

is unnecessary to address any Eleventh Amendment concerns.

2 some of his Islamic religious materials, depriving him of his right 27

freely to practice his religion because of his race and religious 28

beliefs. 29

According to Al-Ra'id, on May 9 he went to Ingle's office to 30

request photocopies of certain Islamic materials. Ingle was busy 31

and stated that Al-Ra'id could leave the originals in his office 32

for Ingle to review and copy later. Al-Ra'id contends, however, 33

that Ingle later reacted in the following manner: 34

Defendant Ingle notified the Appellant that he had read 35

said literature, and due to the fact that he (Defendant 36

Ingle) was a christian, he found the literature person37

ally degrading, insulting and repulsive, in addition to 38

expressing numerous other derogatory superlatives in 39

regards to the literature the Appellant had given Defen40

dant Ingle for photocopying. 41

The materials were not returned to Al-Ra'id. 42

Al-Ra'id filed a supplemental complaint in wh ich he alleged 43

that the defendants had conspired to retaliate against him for 44

filing his lawsuit in violation of his right of access to the 45

courts. 1 In particular, Al-Ra'id argued that the violations oc46

curred when defendants prohibited him from speaking, teaching, and 47

having a voice in the prison Islamic community. 48

The defendants removed the action to federal court, then filed 49

a motion to dismiss or for summary judgment, asserting, inter alia

, 50

qualified immunity. The district court granted summary judgment on 51

qualified immunity grounds. 523 II. 53

We review summary judgment de novo

, "reviewing th e record 54

under the same standards which guided the district court." G ulf 55

States Ins. Co. v. Alamo Carriage Serv. , 22 F.3d 88, 90 (5th Cir. 56

1994) (in ternal quotations omitted). Summary judgment is proper 57

"when no genuine issue of material fact exists that would necessi58

tate a trial." Id. In determining whether summary judgment was 59

proper, we view all factual questions in the light most favorable 60

to the non-movant. S ee L emelle v. Universal Mfg. Corp. , 18 F.3d 61

1268, 1272 (5th Cir. 1994). 62

In assessing qualified immunity, we engage in a two-step 63

analysis. First, we determine whether a plaintiff has alleged the 64

violation of a clearly established constitutional right under the 65

current state of the law. See Rankin v. Klevenhagen , 5 F.3d 103, 66

105-08 (5th Cir. 1993). Second, if the plaintiff has alleged such 67

a constitutional violation, we decide whether his defendant ' s 68

conduct was "objectively reasonable," measured by reference to the 69

law as clearly established at the time of the challenged conduct. 70

See Harper v. Harris County, Tex.

, 21 F.3d 597, 601 (5 th Cir. 71

1994); Rankin , 5 F.3d at 108. 72

III. 73

A. 74

In the district court, Al-Ra'id claimed th at the defendants 75

retaliated against him for initiating this civil action, in viola76

tion of his right of access to the courts. Al-Ra’id appears to 774

have waived or abandoned this issue on appeal, however, as he does 78

not brief it. 79

An appe llant’s brief must contain an argument on the issues 80

that are raised, in order that we, as a reviewing court, may know 81

what action of the district court is being complained of. S ee F ED

. 82

R. A PP

. P. 28(a)(6). There is no exemption for p ro se litigants, 83

though we construe their briefs liberally. 84

In the section of his brief discussing Eleventh Amendment 85

immunity, Al-Ra’id makes one passing reference to “the retaliatory 86

acts taken by Defendant Farooq against the Appellant after Appel87

lant initiated this civil action.” Later in the same Eleventh 88

Amendment immunity section, he again refers to the alleged 89

“retaliati[on] against the Appellant for petitioning the government 90

for the redress of grievances and utilizing his right to access to 91

courts.” No other mention is made of the retaliation claim, nor 92

does Al-Ra’id make an y effort to inform us of what alleged error 93

the district court made in disposing of this issue. Accordingly, 94

we have nothing to review or rule upon; the issue is abandoned. 95

B. 96

Al-Ra'id argues that the chaplains "totally disregarded" the 97

established prison rules and regulations for confiscating personal 98

property, in violation of his due process rights. In M artin v. 99

Dallas County, Tex.

, 822 F.2d 553, 554-55 (5th Cir. 1987), the 100

plaintiff filed a § 1983 action alleging that he was held in jail 101

for 31⁄2 weeks longer than his DWI sentence. He complained that his 1022 As we stated in Martin

, the "[v]iolation of a substantive, as opposed to

a procedural, due pr ocess constitutional right does not fall within the

limitations of Parratt/Hudson ." 822 F.2d at 555.

5 wrongful incarceration constituted a deprivation of liberty without 103

due process of law. We held as follows: 104

Whether such deprivation came about intentionally or 105

negligently, both of which allegations are found in the 106

complaint, this aspect of the case falls within the 107

ambit of Parratt v. Taylor an d H udson v. Palmer

. 108

Parratt and Hudson hold that no constitutional claim may 109

be asserted by a plaintiff who wa s deprived of his 110

liberty or property by negligent or intentional conduct 111

of public officials, unless the state procedures under 112

which those officials acted are unconstitutional or 113

state law fails to afford an adequate post-deprivation 114

remedy for their conduct. 115

Id. at 555 (citations omitted). We concluded that no 116

constitutional claim could be asserted, as adequate post117

deprivation remedies were available: 118

Texas law afforded Martin remedies against his illegal 119

detention both while it was under way and for post120

deprivation compensatory relief. Martin could have 121

sought habeas corpus relief pursuant to Tex. Crim. Proc. 122

Code Ann. art. 11.01 or tort recovery for false 123

imprisonment. 124

Id. 125

Similarly, Al-Ra'id's procedural due process claim 2 cannot be 126

asserted, because adequate post-deprivation remedies are available 127

through the prison grievance procedure. The state points out that 128

there is a three-step grievance procedure available throughout the 129

TDCJ, and even Al-Ra'id admits that he "has appealed to the unit 130

warden via the inmate grievance procedure . . . ." 131

In fact, in Al-Ra'id's brief on appeal, he states that "[i]t 132

must be kept in mind that, Appellant's claim is not that [the TDCJ] 1336

does not provide an adequate remedy or process in regards to 134

censorship of religious material, Appellant's complaint is that the 135

Defendants in this action circumvented t he process due to the 136

Appel l ant

. . . ." Because Al-Ra'id has an adequate post137

deprivation remedy and does not allege that the prison "censorship" 138

procedures themselves are invalid, summary ju dgment was properly 139

granted on his pr ocedural due process claim. S ee also Sandin v. 140

Conner , 115 S. Ct. 2293 (1995). 141

C. 142

Al-Ra'id asserts that the confiscation of his legal materials 143

by Ingle and Farooq wa s motivated by racial discrimination. 144

According to Al-Ra'id, he was tre ated differently from other 145

prisoners by the chaplains because he is black. Al-Ra'id presents 146

no evidence to go beyond these generalized assertions, however, and 147

such conclusory allegations of malice are insufficient to maintain 148

his claim. Harlow v. Fitzgerald , 457 U.S. 800, 817-18 (1982). 149

D. 150

Al-Ra'id contends that the seizure of his religious materials 151

was an improper infringement on his freedom to practice his 152

religion. As mentioned, Al-Ra'id asserts that the confiscation was 153

prompted because of his Shiite Muslim religion, and he recounts 154

that Ingle told him that, as a Christian, Ingle found the 155

literature "degrading, insulting and repulsive." 156

Al-Ra'id's allegations were verified under penalty of perjury; 1577

thu s, they are deemed competent summary judgment evidence. S ee 158

Nissho-Iwai Am. Corp. v. Kline

, 845 F.2d 1300, 1306-07 (5th Cir. 159

1988). In contrast, the state asserts that the confiscation 160

occurred "strictly out of concern for inmate security." The state 161

contends that "[d]efendants reasonably believed that the divisive 162

nature of Plaintiff's literature [which characterized Christians as 163

Satanists] may incite hostility and violence between re ligious 164

inmate groups." 165

The district court held that the defendants were entitled to 166

qualified immunity, noting that 167

[a]t the time the action was taken, the development of 168

the law with regard to the free exercise of religion by 169

prisoners was not at the stage where this Court must 170

conclude that the Defendant officials who confiscated 171

Plaintiff's religious material and denied Plaintiff his 172

attempts to lead the Wednesday night Muslim study class 173

. . . moved beyond the immunity to which they were 174

entitled. 175

We agree. Even in prison, the right to practice one's religious 176

beliefs is co nstitutionally protected. S ee, e.g.

, Muhammad v. 177

Lynaugh , 966 F.2d 901, 902 (5th Cir. 1992). 178

Al-Ra 'id, however, has not carried his burden of defeating 179

defendants' qualified immu nity defense. S ee Bennett v. City of 180

Grand Prairie

, 883 F.2d 400, 408 (5th Cir. 1989). Bare allegations 181

of malice do not suffice to subject government officials either to 182

the costs of trial or to the burdens of broad-reaching discovery. 183

Harlow , 457 U.S. at 817-18 (1982). 184

And yet, Al-Ra'id has offered little more. His assertion that 185

Ingle stated he found the materials to be personally degrading, 186

insulting, and repulsive to him as a Christian )) even if 1878

proved )) would not undermine defendants' qualifie d immunity claim. 188

Their interest in preventing the dissemination of the literature 189

w as bottomed on its highly inflammatory and divisive character. 190

Ingle presented summary judgment evidence that he decided to 191

pass on the material to Farooq for inspection specifically because 192

it promoted violence and denounced Christianity as Satanism. Ingle 193

properly considered his own reactions to this intensely provocative 194

literature in evaluating what kind of effect it might have on the 195

inmates. 196

Moreover, the defendants' actions were not viola tive of 197

clearly established law. TDCJID Administrative Directive AD-7.30 198

specifies in its statement of policy that "no one shall disparage 199

the religious beliefs of any inmate, or other person . . . ." If 200

Ingle had assisted Al-Ra'id with the copyi ng of the materials 201

denouncing Christians as Satanists, he would have been helping him 202

violate this regulation. 203

E. 204

Al-Ra'id filed motions for leave to file a second supplemental 205

complaint and a third supplemental complaint. The magistrate judge 206

granted the motions. The district court struck this order and 207

denied Al-Ra'id's motions to file his supplemental complaints. The 208

court stated that the supplemental complaints allege "additional 209

causes of action against additional defendants," and it noted that 210

Al-Ra'id could refile the complaints as new actions if he so 211

desired. 2129

The decision to grant or deny a motion to amend is entrusted 213

to the sound discretion of th e district court. N orman v. Apache 214

Corp.

, 19 F.3d 1017, 1021 (5th Cir. 1994); Avatar Exploration, Inc. 215

v. Chevron, U.S.A., Inc.

, 933 F.2d 31 4, 320 (5th Cir. 1991). On 216

appeal, Al-Ra'id argues that the district court erred, bu t he 217

provides no support for this assertion other than stating that 218

because the district court erred in granting summary judgment, it 219

also erred in striking the order. 220

Al-Ra'id has cite d no caselaw or factual support to bolster 221

his cont ention, and he has effectively abandoned his claim by 222

failing to brief it. S ee, e.g.

, Brinkmann v. Abner

, 813 F.2d 744, 223

7 48 (5th Cir. 1987). Moreover, we fail to see any prejudice 224

suffered by Al-Ra'id, and we therefore find no error. 225

AFFIRMED. 22610

WIENER, Circuit Judge, concurring in part and dissenting in part. 227

I concur in the panel majority's opinion and judgment to the 228

extent that it affirms the district court's dismissal of Al-Raid's 229

claims against the prison chaplains for a llegedly disregarding 230

established prison rules (section III.B.), racial discrimination 231

(III.C.), and infringement on the fr ee exercise of his religion 232

(III.D.), as well as our rejection of Al-Ra'id's alle gation that 233

the district court erred in refusing to grant his motion to amend 234

his complaint to add new causes of action and new defendants. I 235

dissent, however, from the panel majority's affirmance of the 236

district court's dismissal of Al-Ra'id's claim that the defendants 237

acted against him in retaliation for his attempt to assert his 238

Constitutional right of access to the courts (section III.A.). 239

Al-Ra'id is a prisoner in the Texas state system, proceeding 240

pro se and in forma pauperis (IFP). That we construe the pleadings 241

of such parties liberally is so well established that no citation 242

is required. Despite such liberality, however, the panel majority 243

concludes that Al-Ra'id's briefing is so deficient that it 244

constitutes abandonment of the retaliation issue on appeal. I am 245

frankly at a loss to see how that conclusion can be justified. 246

First, Al-Ra'id filed a notice of appeal to the order of the 247

district court granting summary judgment and dismissing all of his 248

claims. One of these claims was grounded in retaliation for 249

exercising his Constitutional right of access to the courts. In 250

demonstrating to this court that he wished to pursue that claim SQ at 25111

least implicitly demonstrating his belief that the district court 252

had erred in such dismissal SQ Al-Ra'id stated in his brief both 253

facts and law implicating the claim: 254

Appellant sues for the continuing deprivation 255

of his Islamic literature without due process

, 256

. . . a nd the r etaliatory acts taken by 257

Defendant Farooq against the Appellant after 258

Appellant initiated this ci vil action

. 259

(emphasis added). 260

Two pages later in his brief, Al-Ra'id stated: 261

Defendant Farooq's involvement in

. . . 262

retaliating against the Appellant for 263

petitioning the government for the redress of 264

grievances and utilizing his right to access 265

to the courts . (emphasis added). 266

Elsewhere in his brief Al-Ra'id details the acts of alleged 267

retaliation, implicating the confiscation of his Islamic religious 268

materials. The majority opinion is correct in noting that Al269

Ra'id's legal and factual allegations concerning retaliation appear 270

in t he part of his brief discussing E leventh Amendment immunity 271

while, ideally, it should have been i n the part discussing 272

qualified immunity. But if that type of "wrong pew" organizing of 273

a brief by a pr o se IFP prisoner is not the kind of imperfection 274

that is excused by liberal construction, it is hard for me to 275

envision either the justice in or utility of the rule. 276

It is true that Al-Ra'id did not cite case law, did not utter 277

magic words about the district court committing reversible error, 278

and did not file with us a brief that is a paragon of clarity and 279

legal syntax. Yet the purpose of our briefing requirements is 280

cle arly met: Neither this court nor the defendants can 281

legitimately turn a blind eye to the above-quoted statements from 2823 See

, e.g.

, Woods v. Smith , 60 F.3d 1161, 1164 (5th Cir. 1995).

12 Al-Ra'id's br ief, for they obviously serve the briefing rule's 283

purpose of alerting us and the defendants to the legal and factual 284

bases of Al-Ra'id's appeal from the district court's dismissal of 285

his retaliation claim. Even if Al-Ra'id is confused or does not 286

know the difference between qu alified immunity and Eleventh 287

Amendment immunity, we and counsel for the Defendants certainly do. 288

And, like our liberal construction rule, the cause of action in 289

retaliation for accessing the courts is so well and long 290

established as to need no citation. 3 291

In all candor, I would not "bet the farm" on Al-Ra'id's 292

likelihood of obtaining a judgment based on retaliation, were we to 293

allow his claim to be tried. Neither do I ignore the burden placed 294

on the courts, law enforcement, prison administration, and 295

governme nt in general, that is caused by the burgeoning 296

"recreational" litigation instigated by persons incarcerated. But 297

the resolution of this problem, if there is one, must result from 298

the development of a comprehensive, principled plan, not from 299

sweeping claims under the legal carpet on an ad hoc basis. 300

As I would reverse the di strict court's dismissal of Al301

Ra'id's claim of retaliation, I respectfully dissent, but only on 302

that issue. In all other respects I concur. 303