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White v. Labrado, 02-50147 (2002)

Court: Court of Appeals for the Fifth Circuit Number: 02-50147 Visitors: 34
Filed: Oct. 15, 2002
Latest Update: Feb. 21, 2020
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 02-50147 Summary Calendar JOE WHITE; MICHAEL PESACOV, Plaintiffs-Appellants, versus J. LABRADO; K. JUSTICE; DEAN QUINTON; D. CROCKETT, Defendants-Appellees. - Appeal from the United States District Court for the Western District of Texas USDC No. EP-01-CV-136-DB - October 11, 2002 Before JOLLY, EMILIO M. GARZA and PARKER, Circuit Judges. PER CURIAM:* Joe White, formerly federal prisoner # 05405-067, and Michael Pesacov, federal pris
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               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                           No. 02-50147
                         Summary Calendar


JOE WHITE; MICHAEL PESACOV,

                                         Plaintiffs-Appellants,

versus

J. LABRADO; K. JUSTICE;
DEAN QUINTON; D. CROCKETT,
                                         Defendants-Appellees.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                     USDC No. EP-01-CV-136-DB
                       --------------------
                         October 11, 2002

Before JOLLY, EMILIO M. GARZA and PARKER, Circuit Judges.

PER CURIAM:*

     Joe White, formerly federal prisoner # 05405-067, and

Michael Pesacov, federal prisoner # 33039-037, (“Appellants”)

appeal the summary-judgment dismissal of their civil rights

complaint pursuant to Bivens v. Six Unknown Named Agents of Fed.

Bureau of Narcotics, 
403 U.S. 388
(1971).   The complaint alleged

that officials of La Tuna FCI interfered with Appellants’ rights

to conduct Jewish religious services, violated Appellants’ rights

under the Religious Freedom Restoration Act (“RFRA”), 42 U.S.C.

     *
        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that this opinion should not be published and is not precedent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.
                            No. 02-50147
                                 -2-

§ 2000bb, and the Religious Land Use and Incarcerated Persons Act

(“RLUIPA”), 42 U.S.C. § 2000cc, and interfered with Appellants’

access to court.    Appellants argue that the district court erred

in determining that a two-week deprivation of religious services

did not amount to a constitutional or statutory violation; they

also argue that the defendants offered perjurious affidavits.

Appellants do not argue that the district court erred in

rejecting their access-to-court claim, and therefore that issue

is deemed abandoned.    See Brinkmann v. Dallas County Deputy

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

     The district court did not err in determining that the

alleged deprivation did not amount to a First Amendment violation

and that Appellants did not meet their burden of showing that any

deprivation substantially burdened their right of free exercise

under the RFRA.**   See Diaz v. Collins, 
114 F.3d 69
, 71-72 (5th

Cir. 1997); Green v. McKaskle, 
788 F.2d 1116
, 1126 (5th Cir.

1986).

     Appellants’ perjury argument is without merit; there has

been no showing that the summary-judgment evidence contained

perjury and the district court accepted the Appellants’ factual

assertions as true for purposes of deciding the motion.

     AFFIRMED.


     **
       The RFRA is unconstitutional as applied to the states.
City of Boerne v. Flores, 
521 U.S. 507
(1997). It is unnecessary
to determine whether the RFRA is constitutional as applied to the
federal government because, even if it is, Appellants are not
entitled to relief.

Source:  CourtListener

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