1 IN THE UNITED STATES COURT OF APPEALS

2 FOR THE FIFTH CIRCUIT

3 _____________________

4 No. 94-60486

5 _____________________

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

7 Thomas E. Jones,

8 Plaintiff-Appellant,

9 v.

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

11 Defendants-Appellees.

12 __________________________________________

13 Appeal from the United States District Court

14 for the Southern District of Texas

15 __________________________________________

16 November 7, 1995

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

18 JERRY E. SMITH, Circuit Judge:

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

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

21 religious materials. We affirm.

22 I.

23 Al-Ra'id, a Muslim prisoner in the Texas Department of Crimi24 nal Justice ("TDCJ"), filed a complaint in state court against unit

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

26 Al-Ra'id alleged that on May 9, 1993, the defendants confiscated
 

1 The defendants were 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

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

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

29 beliefs.

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

31 request photocopies of certain Islamic materials. Ingle was busy

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

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

34 that Ingle later reacted in the following manner:

35 Defendant Ingle notified the Appellant that he had read

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

37 Ingle) was a christian, he found the literature person38 ally degrading, insulting and repulsive, in addition to

39 expressing numerous other derogatory superlatives in

40 regards to the literature the Appellant had given Defen41 dant Ingle for photocopying.

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

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

44 that the defendants had conspired to retaliate against him for

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

courts.1 46 In particular, Al-Ra'id argued that the violations oc47 curred when defendants prohibited him from speaking, teaching, and

48 having a voice in the prison Islamic community.

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

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

51 qualified immunity. The district court granted summary judgment on

52 qualified immunity grounds.
3

53 II.

54 We review summary judgment de novo, "reviewing the record

55 under the same standards which guided the district court." Gulf

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

57 1994) (internal quotations omitted). Summary judgment is proper

58 "when no genuine issue of material fact exists that would necessi59 tate a trial." Id. In determining whether summary judgment was

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

61 to the non-movant. See Lemelle v. Universal Mfg. Corp., 18 F.3d

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

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

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

65 violation of a clearly established constitutional right under the

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

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

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

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

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

71 See Harper v. Harris County, Tex., 21 F.3d 597, 601 (5th Cir.

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

73 III.

74 A.

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

76 retaliated against him for initiating this civil action, in viola77 tion of his right of access to the courts. Al-Ra’id appears to
4

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

79 not brief it.

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

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

82 what action of the district court is being complained of. See FED.

83 R. APP. P. 28(a)(6). There is no exemption for pro se litigants,

84 though we construe their briefs liberally. 

85 In the section of his brief discussing Eleventh Amendment

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

87 acts taken by Defendant Farooq against the Appellant after Appel88 lant initiated this civil action.” Later in the same Eleventh

89 Amendment immunity section, he again refers to the alleged

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

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

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

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

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

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

96 B.

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

98 established prison rules and regulations for confiscating personal

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

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

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

102 for 31⁄2 weeks longer than his DWI sentence. He complained that his
 

2 As we stated in Martin, the "[v]iolation of a substantive, as opposed to

a procedural, due process constitutional right does not fall within the

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

5

103 wrongful incarceration constituted a deprivation of liberty without

104 due process of law. We held as follows:

105 Whether such deprivation came about intentionally or

106 negligently, both of which allegations are found in the

107 complaint, this aspect of the case falls within the

108 ambit of Parratt v. Taylor and Hudson v. Palmer.

109 Parratt and Hudson hold that no constitutional claim may

110 be asserted by a plaintiff who was deprived of his

111 liberty or property by negligent or intentional conduct

112 of public officials, unless the state procedures under

113 which those officials acted are unconstitutional or

114 state law fails to afford an adequate post-deprivation

115 remedy for their conduct.

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

117 constitutional claim could be asserted, as adequate post118 deprivation remedies were available:

119 Texas law afforded Martin remedies against his illegal

120 detention both while it was underway and for post121 deprivation compensatory relief. Martin could have

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

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

124 imprisonment.

125 Id. 

Similarly, Al-Ra'id's procedural due process claim2 126 cannot be

127 asserted, because adequate post-deprivation remedies are available

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

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

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

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

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

133 must be kept in mind that, Appellant's claim is not that [the TDCJ]
6

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

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

136 Defendants in this action circumvented the process due to the

137 Appellant . . . ." Because Al-Ra'id has an adequate post138 deprivation remedy and does not allege that the prison "censorship"

139 procedures themselves are invalid, summary judgment was properly

140 granted on his procedural due process claim. See also Sandin v.

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

142 C.

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

144 by Ingle and Farooq was motivated by racial discrimination.

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

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

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

148 such conclusory allegations of malice are insufficient to maintain

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

150 D.

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

152 was an improper infringement on his freedom to practice his

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

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

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

156 literature "degrading, insulting and repulsive." 

157 Al-Ra'id's allegations were verified under penalty of perjury;
7

158 thus, they are deemed competent summary judgment evidence. See

159 Nissho-Iwai Am. Corp. v. Kline, 845 F.2d 1300, 1306-07 (5th Cir.

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

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

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

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

164 Satanists] may incite hostility and violence between religious

165 inmate groups."

166 The district court held that the defendants were entitled to

167 qualified immunity, noting that

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

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

170 prisoners was not at the stage where this Court must

171 conclude that the Defendant officials who confiscated

172 Plaintiff's religious material and denied Plaintiff his

173 attempts to lead the Wednesday night Muslim study class

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

175 entitled.

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

177 beliefs is constitutionally protected. See, e.g., Muhammad v.

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

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

180 defendants' qualified immunity defense. See Bennett v. City of

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

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

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

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

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

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

187 insulting, and repulsive to him as a Christian))even if
8

188 proved))would not undermine defendants' qualified immunity claim.

189 Their interest in preventing the dissemination of the literature

190 was bottomed on its highly inflammatory and divisive character. 

191 Ingle presented summary judgment evidence that he decided to

192 pass on the material to Farooq for inspection specifically because

193 it promoted violence and denounced Christianity as Satanism. Ingle

194 properly considered his own reactions to this intensely provocative

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

196 inmates.

197 Moreover, the defendants' actions were not violative of

198 clearly established law. TDCJID Administrative Directive AD-7.30

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

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

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

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

203 violate this regulation.

204 E.

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

206 complaint and a third supplemental complaint. The magistrate judge

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

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

209 court stated that the supplemental complaints allege "additional

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

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

212 desired.
9

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

214 to the sound discretion of the district court. Norman v. Apache

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

216 v. Chevron, U.S.A., Inc., 933 F.2d 314, 320 (5th Cir. 1991). On

217 appeal, Al-Ra'id argues that the district court erred, but he

218 provides no support for this assertion other than stating that

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

220 also erred in striking the order. 

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

222 his contention, and he has effectively abandoned his claim by

223 failing to brief it. See, e.g., Brinkmann v. Abner, 813 F.2d 744,

224 748 (5th Cir. 1987). Moreover, we fail to see any prejudice

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

226 AFFIRMED.
10

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

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

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

230 claims against the prison chaplains for allegedly disregarding

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

248 district court granting summary judgment and dismissing all of his

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

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

251 demonstrating to this court that he wished to pursue that claimSQat
11

252 least implicitly demonstrating his belief that the district court

253 had erred in such dismissalSQAl-Ra'id stated in his brief both

254 facts and law implicating the claim: 

255 Appellant sues for the continuing deprivation

256 of his Islamic literature without due process,

257 . . . and the retaliatory acts taken by

258 Defendant Farooq against the Appellant after

259 Appellant initiated this civil action.

260 (emphasis added). 

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

262 Defendant Farooq's involvement in . . .

263 retaliating against the Appellant for

264 petitioning the government for the redress of

265 grievances and utilizing his right to access

266 to the courts. (emphasis added). 

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

268 retaliation, implicating the confiscation of his Islamic religious

269 materials. The majority opinion is correct in noting that Al270 Ra'id's legal and factual allegations concerning retaliation appear

271 in the part of his brief discussing Eleventh Amendment immunity

272 while, ideally, it should have been in the part discussing

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

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

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

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

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

278 magic words about the district court committing reversible error,

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

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

281 clearly met: Neither this court nor the defendants can

282 legitimately turn a blind eye to the above-quoted statements from
3 See, e.g., Woods v. Smith, 60 F.3d 1161, 1164 (5th Cir. 1995). 

12

283 Al-Ra'id's brief, for they obviously serve the briefing rule's

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

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

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

287 know the difference between qualified immunity and Eleventh

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

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

290 retaliation for accessing the courts is so well and long

established as to need no citation.3 291

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

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

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

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

296 government in general, that is caused by the burgeoning

297 "recreational" litigation instigated by persons incarcerated. But

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

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

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

301 As I would reverse the district court's dismissal of Al302 Ra'id's claim of retaliation, I respectfully dissent, but only on

303 that issue. In all other respects I concur.