Spencer v. Cain

Full title: Kirk SPENCER, also known as Abdullah Muhammad, Plaintiff-Appellant v. Burl…

Court: United States Court of Appeals, Fifth Circuit

Date published: Apr 1, 2008

272 F. App'x 342 (5th Cir. 2008)

Opinion

No. 06-30950 Summary Calendar.

April 1, 2008.

Kirk Spencer, Angola, LA, pro se.

Appeal from the United States District Court for the Middle District of Louisiana, USDC No. 3:05-CV-1043.

Before STEWAET, OWEN, and SOUTHWICK, Circuit Judges.

PER CURIAM:[fn*] [fn*] 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

Kirk Spencer, Louisiana prisoner # 107286, was found guilty in a prison disciplinary hearing for violating prison rule 30W, General Prohibited Behavior, because during a Muslim prayer service he called Warden Burl Cain, Chaplain Yusuf Abdullah, and President Bush dictators. He was disciplined with a change in his custody classification to maximum and placed in administrative segregation in Camp J Extended Lockdown. Spencer filed a pro se, in forma pauperis complaint under 42 U.S.C. § 1983 against the defendants, alleging that his First Amendment right to free speech and his Fourteenth Amendment right to due process were violated. He denied making the statement at issue and claimed that he was not afforded due process during the disciplinary hearings. He also claimed that the defendants had retaliated against him and conspired to file false disciplinary charges.

As an initial matter, Spencer has not challenged the district court's dismissal of defendants Richard L. Stalder, Burl Cain, Doug Durrett, and Yusuf Abdullah because they were not personally involved in or causally connected to the deprivation of a constitutional right. By failing to address the basis for the district court's dismissal against those defendants, Spencer has abandoned the issue. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993); Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).

The district court dismissed Spencer's due process claim for failure to state a claim because Spencer had failed to allege an infringement of a liberty interest which would invoke the protection of the Due Process Clause. Spencer reiterates his claim that he was denied due process because he was denied an impartial disciplinary hearing, he was not permitted to face his accusers and call witnesses, he was denied the right.to present evidence, and he lacked notice that his actions violated prison rules. Spencer, however, has not shown that his placement in extended lock-down presented an atypical hardship that presents a dramatic difference from the conditions of prison life. See Wilkerson v. Stalder, 329 F.3d 431, 436 (5th Cir. 2003). He therefore has not shown that the district court erred in its ruling.

Finally, prior to service on the defendants, the district court dismissed Spencer's First Amendment, retaliation, and conspiracy claims for failure to exhaust administrative remedies. The Supreme Court recently held that an inmate's failure to exhaust a § 1983 claim is an affirmative defense, and "inmates are not required to specially plead or demonstrate exhaustion in their complaints." Jones v. Bock, 549 U.S. 199, 127 S.Ct. 910, 921, 166 L.Ed.2d 798 (2007); see also Carbe v. Lappin, 492 F.3d 325, 327-28 (5th Cir. 2007). Accordingly, we vacate the district court's dismissal of the First Amendment, retaliation, and conspiracy claims for failure to exhaust and remand for further proceedings consistent with Jones.

AFFIRMED IN PART; VACATED AND REMANDED IN PART.