Case: 12-40695         Document: 00512401742          Page: 1    Date Filed: 10/09/2013




                           REVISED OCTOBER 8, 2013

            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit

                                                                               FILED
                                         No. 12-40695                       October 7, 2013

                                                                             Lyle W. Cayce
                                                                                  Clerk
JAMES MCCREARY

                                                     Plaintiff-Appellant
v.

JEFFERY RICHARDSON, Captain

                                                     Defendant-Appellee



                     Appeal from the United States District Court
                           for the Eastern District of Texas
                         USDC No. 6:11-cv-00559-MHS-JDL


Before JONES and CLEMENT, Circuit Judges, and KAZEN*, District Judge.
PER CURIAM:**
       James McCreary, Texas prisoner #1370831, appeals pro se the district
court’s dismissal of his lawsuit against Captain Jeffrey Richardson of the Texas
Department of Criminal Justice (“TDCJ”).                   For the following reasons we
AFFIRM.


       *
           District Judge of the Southern District of Texas, sitting by designation.
       **
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                 No. 12-40695




                       FACTS AND PROCEEDINGS
      On May 13, 2011, McCreary and over a hundred other Muslim prisoners
were standing in the hallway of the H. H. Coffield Unit waiting to attend a
Jumu’ah service.     Jumu’ah is an obligatory day of assembly for Muslims.
Captain Richardson, who had been sitting at a nearby desk, reportedly
approached McCreary and stated that he “wish[ed] he could shut [the] service
down.” McCreary asked Richardson why “he always single[d] out the Muslims[’]
services subjecting [the Muslims] to harassment.” Richardson then became
“irate,” used abusive language, and threatened to send McCreary to lock-up and
to strip search him. When Richardson asked McCreary if McCreary had a
problem with Richardson’s behavior, McCreary responded “yes,” and asked
Richardson, “What have we done to make you mistreat the [M]uslims every time
when we have our services?”       Richardson then ordered a strip search of
McCreary.
      McCreary objected to the search, informing Richardson that his religion
did not allow him to be naked in front of females other than his wife. Richardson
nevertheless conducted the search in the hallway in front of female officers and
staff. McCreary repeated that the strip search was a violation of his beliefs, to
which Richardson responded that he “did not care about [McCreary’s] belief or
[him].” McCreary claimed that Richardson performed the search “for his own
personal sexual gratification and homosexual preferences.” Richardson also
reportedly prevented McCreary from attending the Jumu’ah service after the
strip search was completed. The exact time period that McCreary was forced to
remain unclothed during the strip search is unclear—but the record indicates
that the strip search was a lengthy one. After the strip search concluded,
McCreary alleged that he (now clothed) was forced to remain standing in a

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                                 No. 12-40695

corner of the hallway until another guard instructed McCreary to return to his
cell block.
      McCreary filed a complaint against Richardson in his individual capacity,
alleging that Richardson conducted an unconstitutional strip search. McCreary
also alleged that Richardson improperly prevented McCreary from attending
religious services in violation of the Religious Land Use and Institutionalized
Person’s Act (“RLUIPA”), the First, Fourth, and Fourteenth Amendments, Texas
state law, and 42 U.S.C. §§ 1981, 1986, and 1988.
      After a Spears hearing, see Spears v. McCotter, 

(5th Cir.
1985), McCreary moved for limited discovery to obtain various TDCJ policy
documents regarding strip searches, including documents describing when and
where strip searches could be conducted.        The Magistrate Judge granted
McCreary’s request and directed Richardson to specify whether the search was
conducted pursuant to a specific order or policy—and if so, to produce such order
or policy—or upon his belief that there was reasonable cause to conduct the
search. Richardson responded that the search was conducted based on his belief
that there was reasonable cause, and did not turn over any additional
documents.
      McCreary filed a motion for a default judgment or, in the alternative, an
“order to disclose” additional TDCJ orders and policies regarding strip searches.
McCreary contended that the district court had ordered Richardson to produce
a copy of the orders or policies, and that he had failed to do so. Richardson
responded that he had complied with the Magistrate Judge’s order, but agreed
to produce a copy of the TDCJ administrative directive authorizing strip
searches upon a supervisor’s belief that there is reasonable cause.          The
Magistrate Judge found that Richardson acted in compliance with the court
order, and recommended that the district court deny McCreary’s request for a



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                                  No. 12-40695

default judgment or any further discovery. The district court adopted the
Magistrate Judge’s report over McCreary’s objections, and denied the motion.
      Richardson moved for summary judgment asserting that McCreary’s
claims were without merit and that he was entitled to qualified immunity. The
Magistrate Judge found that: (1) McCreary had no standing to pursue injunctive
relief because Richardson was no longer employed at the Coffield Unit; (2)
McCreary did not have a claim for damages under RLUIPA; and (3) Richardson
was entitled to qualified immunity under 42 U.S.C. § 1983 because McCreary
had not shown that Richardson’s actions were objectively unreasonable in light
of clearly established law at the time of the incident. The district court adopted
the Magistrate Judge’s report, granted Richardson’s motion for summary
judgment, dismissed McCreary’s federal claims with prejudice, and dismissed
his supplemental state claims without prejudice. McCreary filed a timely notice
of appeal, challenging both the denial of default judgment and the dismissal of
his lawsuit.
                          STANDARD OF REVIEW
      Discovery rulings are “committed to the sound discretion of the trial court”
and will not be reversed on appeal unless “arbitrary or clearly unreasonable.”
Williamson v. USDA, 

, 373, 382 (5th Cir. 1987).            Summary
judgment rulings are reviewed de novo, with all facts and inferences construed
in the light most favorable to the nonmoving party. Dillon v. Rogers, 

, 266 (5th Cir. 2010). A movant is entitled to summary judgment upon a
showing “that there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a).
                                 DISCUSSION
A.    Discovery Motions
      The district court did not abuse its discretion in denying McCreary’s
motion for a default judgment, or, in the alternative, to compel discovery.

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Although the Magistrate Judge granted McCreary’s motion for limited discovery,
Richardson complied with the court’s order in full and was under no obligation
to produce additional documents. Furthermore, because Richardson admitted
that the search was conducted based on his personal belief that reasonable cause
existed, the orders and policies sought by McCreary were not relevant to
Richardson’s motion for summary judgment or the issue of his qualified
immunity. McCreary has “failed to show that discovery was necessary to
establish any issue of material fact that would preclude summary judgment,”
and the district court’s discovery rulings will not be disturbed. King v. Dogan,

, 346 (5th Cir. 1994).
B.    Summary Judgment
      McCreary does not have standing to pursue injunctive relief because
Richardson is without authority to redress his injuries. See Okpalobi v. Foster,

, 427 (5th Cir. 2001); see also City of Los Angeles v. Lyons, 

, 102 (1983) (“Past exposure to illegal conduct does not in itself show a present
case or controversy regarding injunctive relief if unaccompanied by any
continuing, present adverse effects.” (quoting O’Shea v. Littleton, 

,
495-96 (1974) (internal alterations omitted))). Richardson is no longer employed
at the Coffield Unit and does not have the duty or ability to affect the conditions
of McCreary’s incarceration there. Because Richardson does not have the
“power[] to redress the injuries alleged,” McCreary’s request for injunctive relief
was properly dismissed. 

.
      McCreary has abandoned his claims under 42 U.S.C. §§ 1981, 1986, and
1988 by failing to raise them on appeal. Although pro se briefs are afforded
liberal construction, Haines v. Kerner, 

, 520-21 (1972), even pro se
litigants must brief arguments in order to preserve them. Yohey v. Collins, 

, 224-25 (5th Cir. 1993). We consider only whether McCreary is entitled



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                                  No. 12-40695

to monetary relief under RLUIPA or monetary relief under 42 U.S.C. § 1983 for
violations of his First, Fourth, or Fourteenth Amendment rights.


      i.    RLUIPA
      An inmate is not entitled to monetary damages under RLUIPA for a suit
brought against a correctional officer in his individual capacity. Sossamon v.
Lone Star State of Tex., 

, 328 (5th Cir. 2009), aff’d sub nom
Sossamon v. Texas, 

(2011). Accordingly, McCreary’s RLUIPA
claims were properly dismissed.
      ii.   42 U.S.C. § 1983
      Prior to considering whether McCreary can succeed on his claims under
§ 1983, we must consider whether Richardson was entitled to qualified
immunity. See Pearson v. Callahan, 

, 232 (2009). State actors sued
in their individual capacity under § 1983 are entitled to qualified immunity
“insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” Harlow
v. Fitzgerald, 

, 818 (1982). “Qualified immunity gives government
officials breathing room to make reasonable but mistaken judgments about open
legal questions.” Ashcroft v. al-Kidd, 

, 2085 (2011). “When
properly applied, it protects all but the plainly incompetent or those who
knowingly violate the law.” 

marks omitted). Once a
defendant invokes qualified immunity, as Richardson has done here, the burden
shifts to the plaintiff to demonstrate the inapplicability of the defense.
McClendon v. City of Columbia, 

, 323 (5th Cir. 2002).
      In determining if a defendant is entitled to qualified immunity, this court
evaluates whether the facts alleged show the officer’s conduct violated a
constitutional right, and whether the right at issue was clearly established at
the time of the defendant’s alleged misconduct. 

(citing

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                                  No. 12-40695

Saucier v. Katz, 

, 201 (2001)); Brown v. Strain, 

, 249
(5th Cir. 2011). This court may consider these prongs in any order. 

.
      When applying the second prong of this test, we examine whether “the
contours of a right are sufficiently clear that every reasonable official would have
understood that what he is doing violates that right.” 

(internal alterations and quotation marks omitted). “To answer that question
in the affirmative, we must be able to point to controlling authority—or a robust
consensus of persuasive authority—that defines the contours of the right in
question with a high degree of particularity.” Morgan v. Swanson, 

,
371-72 (5th Cir. 2011) (en banc) (internal quotation marks and footnote omitted).
“We do not require a case directly on point, but existing precedent must have
placed the statutory or constitutional question beyond debate.” al-Kidd, 131 S.
Ct. at 2083. Further, the Supreme Court has “repeatedly told courts . . . not to
define clearly established law at a high level of generality,” because a “general
proposition . . . is of little help in determining whether the violative nature of
particular conduct is clearly established.” 

As this court has noted,
an official:
   does not lose qualified immunity merely because a certain right is clearly
   established in the abstract. It is clearly established that the government
   may not deny due process or inflict cruel and unusual punishments, for
   example, but those abstract rules give officials little practical guidance as
   to the legality of particular conduct. Qualified immunity should not be
   denied unless the law is clear in the more particularized sense that
   reasonable officials should be on notice that their conduct is unlawful.
Kinney v. Weaver, 

, 350 (5th Cir. 2004) (internal quotation marks
omitted).

      Even though there are many aspects of McCreary’s account that, if true,
are troubling, McCreary has not satisfied his burden of showing every


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                                  No. 12-40695

reasonable official would have understood that what Richardson did was in
derogation of clearly established constitutional law.




1. Fourth Amendment Claims

      Prison practices that impinge on prisoners’ constitutional rights are valid
as long as they are “reasonably related to legitimate penological interests.”
Turner v. Safley, 

, 89 (1987).        The “evaluation of penological
objectives is committed to the considered judgment of prison administrators,
‘who are actually charged with and trained in the running of the particular
institution under examination.’” O’Lone v. Estate of Shabazz, 

, 349
(1987) (quoting Bell v. Wolfish, 

, 562 (1979)). Strip searches have
been repeatedly recognized as an important tool of prison security, and are not
per se unconstitutional. See, e.g., Florence v. Bd. of Chosen Freeholders, 132 S.
Ct. 1510, 1515-23 (2012); 

. A prisoner retains, “at best,
a very minimal Fourth Amendment interest in privacy after incarceration.”
Oliver v. Scott, 

, 744 (5th Cir. 2002).        When reviewing the
reasonableness of searches, this court strikes a balance “in favor of deference to
prison authorities’ views of institutional safety requirements against the
admittedly legitimate claims of inmates not to be searched in a humiliating and
degrading manner.” Elliott v. Lynn, 

, 191 (5th Cir. 1994) (internal
quotation marks omitted). We “defer to the judgment of correctional officials
unless the record contains substantial evidence showing their policies are an
unnecessary or unjustified response to problems of jail security.” 

. Finally, for the purposes of Fourth Amendment analysis, we
review the objective reasonableness of conducting a search, and not the officer’s




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subjective intent. See, e.g., 

; Whren v. United
States, 

, 812 (1996).

      Because we construe pro se briefs liberally, we interpret McCreary’s brief
as challenging both the justification and the conduct of his strip search.




(a) Justification

      Though it is “clearly established in the abstract,” 

,
that a prison official must have a reasonable justification for strip searching a
prisoner, on the specific question that matters for the qualified immunity
analysis here—whether a justification has been considered sufficient under our
previous case law—our case law has not “placed the statutory or constitutional
question beyond debate” such that “every reasonable official would have
understood” that McCreary’s strip search was unconstitutional. For example,
in Letcher v. Turner, 

, 510 (5th Cir. 1992), we approved of publicly
strip searching prisoners who created “organized disturbance[s]”. 

There is no sufficiently clear legal difference relevant to the Fourth Amendment
qualified immunity analysis between a food fight and the potentially provocative
barbed words at issue here. A potential disturbance creating a security risk is
a potential disturbance creating a security risk regardless of whether it is
created through potentially inflammatory statements in a hallway full of a
hundred prisoners or flying food.

      The partial dissent criticizes this determination in light of McCreary’s
allegations, but the partial dissent’s analysis conflates disputed facts with
disputed material facts. McCreary and Richardson may have differing accounts
of the events that resulted in McCreary’s strip search and Richardson’s motive


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                                         No. 12-40695

in conducting the strip search, but summary judgment nonetheless remains
appropriate because none of the relevant factual disputes between the parties
affects the ultimate legal determination that Richardson is entitled to qualified
immunity on Fourth Amendment claims. The partial dissent makes much of
Richardson’s alleged motive for conducting the strip search, but Richardson’s
motive does not affect the Fourth Amendment analysis because Fourth
Amendment compliance is, as a general rule, assessed based on objective
reasonableness and not subjective intent. See, e.g., 

83; 

             Both McCreary and Richardson agree that
McCreary asked a series of potentially provocative questions in a public hallway
about Richardson’s behavior. McCreary’s questions, though understandable
given the summary judgment record, nonetheless also constituted a disturbance.
Richardson is entitled to qualified immunity because past case law has
sanctioned public strip searches of prisoners creating a disturbance.2 That
McCreary’s disturbance did not further escalate or turn out to be part of an
organized diversion to hide contraband or worse is fortunate3—not a reason to


       1
           The partial dissent’s citation of Cooke v. Nealy, 

(5th Cir. 1998), is not to
the contrary—the Fourth Amendment is not mentioned a single time in the Cooke opinion
because the retaliation claim in Cooke arose not out of the Fourth Amendment, but rather the
defendant’s constitutional right of access to courts and the defendant’s constitutional right
to file a lawsuit in federal court without retaliation from prison officials. Cooke is accordingly
not only irrelevant to the Fourth Amendment qualified immunity analysis, but also factually
distinguishable from the present case given that McCreary had not previously filed a
complaint against Richardson.
       2
          Though the dissent tries to distinguish Letcher by cabining the case as a challenge
to the presence of females during a strip search, it is a distinction without a difference. If the
security justification for a search is sufficient to justify a public strip search in the presence
of females, that also necessarily entails a judgment that there was a sufficient justification to
strip search the prisoner in the first place.
       3
         The dissent argues that this view overly credits Richardson’s version of the facts, but
McCreary’s own opposition to the motion for summary judgment indicates that McCreary’s
comments had a greater potential for provoking a widespread disruption than suggested by
the partial dissent given the traditional sensitivities surrounding Jumu’ah. “[I]n the past”

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                                        No. 12-40695

deny qualified immunity. To the extent that the cases cited by the partial
dissent suggest otherwise—and we do not believe they do4—they do not alter the
result of the qualified immunity analysis because we do not subject officials to
monetary liability for “picking the losing side” when there is divergent case law.

(internal quotation marks omitted). We do not require
governmental officials to be clairvoyant when federal judges disagree as to the
law.

       Finally, McCreary’s arguments that Richardson’s search violated TDCJ
rules do not materially alter the qualified immunity analysis with respect to the
justification for the strip search. Even assuming that McCreary is correct that
the search violated TDCJ rules (a difficult determination given the present state
of the record), Richardson’s compliance with TDCJ rules does not alter the
constitutional analysis because TDCJ rules do not set the outer constitutional
limits on strip searches. See, e.g., Virginia v. Moore, 

, 176 (2008)
(“[S]tate restrictions do not alter the Fourth Amendment’s protections.”).
McCreary’s remedy for violations of TDCJ rules that do not also violate clearly
established constitutional law is not a § 1983 suit, but rather lies with the prison
grievance procedures and any state law remedies he may have.


noted McCreary, “it was [almost] certain to cause a massive physical confrontation to stop a
Muslim from attending [Jumu’ah], require him to get naked in front of a female, or for a guard
to even touch a Qur’an.”
       4
         The closest cases that the dissent cites are Waddleton v. Jackson, 445 F. App’x 808
(5th Cir. 2011) and Moore v. Carwell, 

(5th Cir. 1999). But Waddleton, given its
procedural posture, does not address questions of qualified immunity, and is, in any case,
distinguishable on its facts. The plaintiff in Waddleton v. Jackson did not create any sort of
disturbance, but rather was inside the chow hall when a disturbance happened outside the
quickly sealed-off chow hall. See Waddleton v. Jackson, No. C-10-267, 

(S.D.
Tex. Nov. 10, 2010). And because Moore dealt with a post-Spears hearing dismissal, all it
determined was that the plaintiff’s claim was not frivolous. See 

. As
such, Moore’s indication that a strip search was not clearly lawful is of little help to McCreary
in demonstrating that every reasonable officer would have known that the search was clearly
unlawful.

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                                  No. 12-40695
      (b) Conduct

      McCreary’s brief alleges that the strip search was unconstitutional both
because of its length and the fact that it was conducted publicly (with females
present).

      Strip searches have been upheld as constitutional even when conducted
in non-private areas in the presence of non-essential personnel, see 

, or on male prisoners in the presence of female officers, see

; Tasby v. Lynaugh, 123 F. App’x 614, 615 (5th Cir.
2005). Given the present case law in this circuit, we are not prepared to say that
a reasonable officer would believe that a public strip search conducted by a male
officer on a male offender in the presence of females after an equally public
disruption was contrary to clearly established law. Precedent does not clearly
establish that a reasonable officer could not perform the strip search in the most
efficient manner possible without abandoning his post—the location where the
incident occurred.   See 

.     Richardson accordingly
deserves qualified immunity relating to Fourth Amendment claims concerning
the public nature of the strip search.

      The length of McCreary’s search gives us pause, but current law does not
indicate that the search was clearly unlawful. Before addressing whether the
search was clearly unlawful, however, we need to determine what precisely
McCreary’s allegations are. McCreary’s pleadings and testimony confirm that
first, he underwent a lengthy strip search, second, got dressed after the strip
search concluded, and then third, was forced to continue standing in the corner
after Richardson left and another guard came by to tell Richardson to leave.
McCreary’s complaint—which is potentially binding at trial and at the very least
constitutes evidence against McCreary should he try to contradict his


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                                       No. 12-40695
pleadings5—indicates that McCreary “was dressed” when he was forced to stand
in the corner after the strip search. McCreary’s testimony during the Spears
hearing when he actually set out the exact chronology of events likewise
confirms that he was permitted to get dressed after the incident:

   The Court: So why did it take so long, if you’re the only guy, they just
   made you stand there for thirty minutes, naked?

   McCreary: No. I was in the hallway thirty minutes naked.

   The Court: Okay, but they just made you stand there for thirty
   minutes . . . ?

   McCreary: He did

   The Court: What?

   McCreary: Nah, he did, he had me, during the time he was searching my
   clothes he taking his time. . . . So he is sitting there the whole time this is
   how long it took him to strip search me. . . . . as he’s searching my clothes
   when he finished searching he’d throw them like a foot or two away from
   him every direction, behind him. . . . So when I go to get my stuff, I gather
   my stuff, about to put my boxers on, he said “I ain’t tell you to get
   dressed.” So now he’s telling me to go through the routine, lift my nuts,
   show my tongue, my ears, the cavity search process. So I do this in the
   middle of the hallway.



       5
          This circuit has long noted that factual statements in the pleadings constitute
binding judicial admissions, see, e.g., Johnson v. Houston’s Restaurant, Inc., 167 F. App’x 393,
395 (5th Cir. 2006); Morales v. Dep’t of the Army, 

, 769 (5th Cir. 1991); Davis v.
A.G. Edwards & Sons, Inc., 

, 107 (5th Cir. 1987), or at the very least adverse
evidentiary admissions, see, e.g., White v. ARCO/Polymers, Inc., 

, 1396 (5th Cir.
1983).

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                                    No. 12-40695
   The Court: So this is . . . Captain Richardson doing this?

   McCreary: Yes, sir.

   The Court: Now . . . tell me again what he was saying before he told you
   to . . . strip so he could search you? . . . . What did he say? . . .

   McCreary: . . . He tell me to get naked. . . . I get naked . . . after I was
   standing there naked, this is when he was going slow doing his
   search . . . . After the strip search I get dressed, he tell me to stand in the
   corner. I stand in the corner. Miss Gibson came, Lieutenant Gibson came,
   and told me to leave . . . .

(emphasis added).

      Accordingly, we must determine whether it was clearly unlawful for
Richardson to conduct a lengthy strip search, after which the prisoner is
permitted to get dressed and told to stand in the corner. We believe that the
length of the strip search was not clearly unlawful.           That McCreary was
permitted to get dressed after the strip search concluded forecloses potential
arguments that McCreary may have been able to raise had he been forced to
remain unclothed once the search had concluded. We are not aware of any
precise clearly established constitutional rule limiting the maximum time that
a strip search can take, or further if such a constitutional countdown timer on
strip searches even exists in the first place. Cf. 

(describing extended strip-search/shower procedure upheld as constitutional by
the Supreme Court); Delmast v. Cardenas, No. 4:09cv629, 

, at
*11, *17 (E.D. Tex. Sept. 1, 2011) (determining that qualified immunity was
proper under the first prong of the qualified immunity test after a half-hour strip
search), appeal denied sub nom., Delmast v. Hudson, 497 F. App’x 424 (5th Cir.


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                                  No. 12-40695
2012). As every reasonable officer would not know that a lengthy strip search
was clearly unlawful, Richardson is entitled to qualified immunity from claims
related to the length of the strip search.




2. First Amendment Claims

      Although prisoners must be provided reasonable opportunities under the
First Amendment to exercise their religious beliefs, Cruz v. Beto, 

,
322 (1972) (per curiam), prison officials may place appropriate limits on the
religious rights that are afforded to inmates consistent with the First
Amendment. Estate of 

. Because McCreary was given
other opportunities to exercise his beliefs, the fact that McCreary’s religious
beliefs may have been impacted by the search does not render Richardson’s
otherwise valid strip search objectively unreasonable under the First
Amendment. See 

      For similar reasons, Richardson did not act in an objectively unreasonable
manner by refusing to permit McCreary to attend his Jumu’ah service after the
search because McCreary had opportunities to “participate in other religious
observances” of his faith. 

see also 

(noting that “the very
stringent requirements as to the time at which Jumu’ah may be held may make
it extraordinarily difficult for prison officials to assure that every Muslim
prisoner is able to attend that service”); Mumin v. Phelps, 

, 1056-
58 (5th Cir. 1988).

      3. Due Process Claims



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                                   No. 12-40695
         Finally, McCreary has not alleged sufficient facts showing that the strip
search imposed hardships atypical of ordinary prison life, and has further failed
to show a liberty interest protected by the Due Process Clause. Sandin v.
Conner, 

, 483-84 (1995).          Richardson is entitled to qualified
immunity and summary judgment on all of McCreary’s § 1983 claims.




iii.     State law claims

         A district court may decline to exercise supplemental jurisdiction over
state law claims if it has dismissed all claims over which it has original
jurisdiction. 28 U.S.C. § 1367(c)(3); Rhyne v. Henderson Cnty., 

, 395
(5th Cir. 1992). When a district court exercises its discretion to dismiss state
law claims, it must do so without prejudice so that the plaintiff may refile in the
appropriate state court. Bass v. Parkwood Hosp., 

, 246 (5th Cir.
1999). The district court did so, and McCreary has not shown any error in
connection with the dismissal of these claims.

                                  CONCLUSION

         We AFFIRM the district court’s dismissal of McCreary’s lawsuit.




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                                 No. 12-40695

      KAZEN, District Judge, concurring in part and dissenting in part.

      Although I concur in most of the majority opinion, I respectfully dissent
from the decision to grant Captain Richardson qualified immunity on
McCreary’s Fourth Amendment claim. Reading the factual record in the light
most favorable to McCreary, I believe he has sufficiently demonstrated a genuine
issue of material fact regarding whether the public strip search was justified.
Thus, summary judgment was improper. I would reverse and remand for
further proceedings on that claim only.

                                          I.

                                          A.

      Starting with the second step of the qualified immunity inquiry, the
majority concludes that Captain Richardson did not act in an objectively
unreasonable manner in conducting a public strip search because he was
responding to "potentially inflammatory statements in a hallway full of a
hundred prisoners." Thus, the majority finds that the strip search was a
justified response to a “disturbance” created by McCreary. I disagree with that
conclusion because it unduly credits Captain Richardson’s sparse and
contradictory version of events in analyzing whether he violated clearly
established law.

            In conducting the second step of the qualified immunity inquiry on
summary judgment, we are to determine the issue of clearly established law
under the plaintiff’s version of events. See, e.g., Ramirez v. Martinez, 

, 378-79 (5th Cir. 2013). McCreary furnished a detailed retelling of the
incident with Captain Richardson, much of which is contained in the majority
opinion.
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                                       No. 12-40695

       By contrast, in response to McCreary’s initial administrative grievance in
the prison, Richardson supposedly reported that McCreary became “disruptive”
during his “opportunity to go to his religious service.” That response mentioned
nothing about a strip search, but rather stated that McCreary was sent back to
his assigned housing and could return when he “decided to follow orders.” The
response concluded: “No further action warranted.” Curiously, this information
did not come directly from Richardson. Instead, as noted in the Magistrate
Judge’s Report and Recommendation, it came in a response signed by Warden
Wisener who purportedly received the information from Richardson. The only
other input allegedly from Richardson, but signed only by his state attorneys,
came in an “Advisory to the Court.” This was described as a response to an order
from the Magistrate Judge requiring Richardson to specify whether the strip
search of McCreary “was the product of a specific unit post order, unit
departmental policy or upon belief of a supervisor that there was reasonable
cause to warrant such a search.” (R. at 69.) The Advisory cited a prison rule, AD
3.22, that “allows a supervisor, such as [Richardson], to call for a strip search
when he or she believes there was reasonable cause for such,” but provides no
explanation of what constituted reasonable cause (nor is rule AD 3.22 in the
record). Notably, Captain Richardson never submitted any personal affidavit or
testimony to support his version of the incident.1

       On the record before us, the only “disruption” by McCreary was two
questions posed early in the encounter that requested the reasons for Captain


       1
             Admittedly, McCreary also did not submit supporting affidavits. However, he
testified to his version of the incident at the Spears hearing (for which Richardson appears not
to have been present). (See R. at 147-48.) Furthermore, McCreary was representing himself
pro se and, as a prisoner, he is severely limited in his ability to interview witnesses, obtain
affidavits, or otherwise investigate his claim. Captain Richardson is not so limited.

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                                  No. 12-40695

Richardson’s mistreatment and general dislike of Muslims. I do not think this
record supports a safety purpose for the strip search. Since Captain Richardson
is virtually silent in this record, there is no evidence that McCreary acted in a
threatening manner, had been tagged as a high-risk prisoner, or otherwise posed
a security threat. Notably, there is also no evidence that McCreary attempted
to incite misbehavior by the other prisoners in the hall nor that any disruption
occurred.

                                             B.

      It is clearly established that a prison official, like Captain Richardson,
must have reasonable justification for initiating a strip search. See Moore v.
Carwell, 

, 237 (5th Cir. 1999) (citing Bell v. Wolfish, 

,
1884 (1979)). It is true that we give substantial deference to prison strip
searches when they are based on legitimate penological interests or institutional
safety requirements. See 

; Watt v. City of Richardson
Police Dept., 

, 196 (5th Cir. 1988). But when the search cannot be
justified on those grounds, we hold it to be unreasonable. See Waddleton v.
Jackson, 

, 809 (5th Cir. 2011) (unpublished) (applying clearly
established law and holding that the plaintiff        sufficiently alleged Fourth
Amendment violation where there was “no justification, penological or
otherwise,” for the strip search conducted); see also Cooke v. Nealy, No. 97-21035,

, at *3 (5th Cir. Dec. 16, 1998) (unpublished) (applying clearly
established law and holding that plaintiff’s direct evidence of a non-routine,
retaliatory strip search was sufficient to state a valid, non-frivolous claim).
Here, even giving the requisite deference to a prison official’s decision to strip
search a prisoner, McCreary has presented credible evidence that an “irate”


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                                  No. 12-40695

Captain Richardson publicly strip searched him without a “legitimate
penological need[]” or meeting any institutional safety requirement. See 

.

      The cases cited by the majority to support a lack of clearly established law
are inapposite. Precedent dismissing facial challenges to strip search policies
does not govern the reasonableness of a specific application of a prison’s strip
search policy. See 

. Here, McCreary has offered credible
evidence of a retaliatory strip search, which is not immunized by a general policy
authorizing strip searches. See Cooke, 

, at *3. In addition,
neither case relied on by the majority, Elliot v. Lynn, 

(5th Cir. 1994),
and Letcher v. Turner, 

(5th Cir. 1992), addresses the
reasonableness of the initial justification for a strip search. In Lynn, the
prisoner “substantially narrow[ed]” the court's review “by conceding that the
scope and justification for the search were not unreasonable.” The inmate in
Letcher challenged only the presence of female prison guards during the strip

.      Here, McCreary expressly contests the initial
justification of the search. Moreover, while the majority relies heavily on the
supposed parallels between “a food fight [in Letcher] and the potentially
provocative barbed words at issue here,” the disturbance in Letcher was more
than just “a food fight.” The disturbance there was “an organized food throwing
incident, in which a number of inmates threw their food trays, banged on their
cell bars, and cursed the guards,” which led to a “lock-down” 

(emphasis added). Here, the only evidence of any “disturbance” was
that McCreary asked two questions of Richardson. Unlike in Letcher, McCreary
did not engage in any abusive behavior toward Richardson. While the majority



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                                      No. 12-40695

emphasizes that McCreary’s questions might have “provok[ed] a disruption,”
they did not.

                                                  II.

      In sum, on the factual record before us and viewed in the light most
favorable to McCreary, there is a genuine issue of material fact as to Captain
Richardson's    justification   for    the    strip     search     and,   ultimately,   the
reasonableness of the search under clearly established law. Summary judgment
was, therefore, improper on McCreary’s Fourth Amendment claim.

            I respectfully dissent.




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