Summary Calendar JNAITH MASSINGILL v. BRAD LIVINGSTON, Director of Texas Department of Criminal Justice, Institutions…

* 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should not be published and is not precedent except under the limited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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-41422
Summary Calendar
J NAITH MASSINGILL
Plaintiff-Appellant
v.
BRAD LIVINGSTON, Director of Texas Department of Criminal Justice,
Institutions Division, in his personal and official capacity
Defendant-Appellee
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:05-CV-785
Before WIENER, GARZA, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant J. Naith Massingill, Texas prisoner # 420353, filed a
civil rights complaint asserting that various Texas prison policies violated his
rights to freely practice his religion, the Israyl Identity Faith, under the Free
Exercise Clause of the First Amendment and under the Religious Land Use and
Institutionalized Persons Act (RLUIPA). He appeals the district court’s grant
of summary judgment in favor of the defendant. Massingill does not challenge
United States Court of Appeals
Fifth Circuit
F I L E D
May 8, 2008
Charles R. Fulbruge III
Clerk

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the district court’s rejection of his claims for a segregated prison cell or for access
to prepackaged food without payment during his Sabbath. His failure to brief
these issues on appeal results in their abandonment. See Yohey v. Collins, 985
F.2d 222, 224-25 (5th Cir. 1993); Brinkmann v. Dallas County Deputy Sheriff
Abner, 813 F.3d 744, 748 (5th Cir. 1987).
Massingill asserts that the district court erred in relying upon 42 U.S.C.
§ 1997e(e) to dismiss his claims. The district court properly held that § 1997e(e)
bars claims for compensatory damages for a First Amendment violation without
a prior showing of physical injury. See Geiger v. Jowers, 404 F.3d 371, 374-75
(5th Cir. 2005). The district court acknowledged that Massingill could raise a
claim for injunctive or declaratory relief without a showing of physical injury
and addressed the merits of Massingill’s claims in conjunction with those
requested bases for relief.
Massingill contends that the district court erred in relying upon Powell v.
Estelle, 959 F.2d 22, 23-26 (5th Cir. 1992), superseded by statute as stated in
Diaz v. Collins, 114 F.3d 69 (5th Cir. 1997). Although in Powell we did not
address each element of the test set forth in Turner v. Safley, 482 U.S. 78, 89
(1987), we have since considered all of those elements in other First Amendment
challenges to prison grooming policies. See Green v. Polunsky, 229 F.3d 486,
490-91 (5th Cir. 2000). Even though Massingill cites to cases from other circuits
and district courts that have overturned similar grooming policies, they are not
binding precedent, being only persuasive authority.
Massingill further asserts that the district court erred by requiring him
to prove that the prison regulations affected an activity central to his beliefs,
urging that the RLUIPA expresses no such requirement. See 42 U.S.C. § 2000cc-
5(7). Contrary to this assertion, the district court did not impose such a
requirement and properly stated the law.
Massingill also insists that the defendant’s evidence was insufficient to
overcome Massingill’s RLUIPA claims in an “as-applied” challenge. His

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conclusional allegations are insufficient to meet his summary judgment burden.
See Michaels v. Avitech, Inc., 202 F.3d 746, 754-55 (5th Cir. 2000). Moreover,
Massingill has failed to establish that any substantial burden placed on the
practice of his religion outweighed the substantial interests of prison officials in
safety, prisoner identification, and hygiene. See Longoria v. Dretke, 507 F.3d
898, 901-02 (5th Cir. 2007); Diaz, 114 F.3d at 72-73.
Massingill also contends that the district court erred by allowing the
defendant to present unpublished case law without giving him a copy. As no
such rule is to be found in the Federal Rules of Evidence or the Federal Rules of
Civil Procedure, there was no error. But see FED. R. APP. P. 32.1(b).
Massingill advances that the district court should have scheduled and held
an evidentiary hearing to help him “complete” the record for appellate review.
As Massingill’s claims fail legally rather than on any factual insufficiency, the
district court did not abuse its discretion in granting summary judgment without
holding a hearing. See Eason v. Thaler, 14 F.3d 8, 9 (5th Cir. 1994).
Additionally, as Massingill has failed to show a genuine issue of material fact,
he has not established that he was entitled to a jury trial. See Plaisance v.
Phelps, 845 F.2d 107, 108 (5th Cir. 1988). And, to any extent that Massingill is
asserting that the district court was biased against him, he has failed to point
to prejudice arising from an extrajudicial source evincing bias. See Liteky v.
United States, 510 U.S. 540, 555 (1994).
Massingill maintains that the district court improperly dismissed his case
to induce him to appeal and thereby generate additional fees for the federal
court system. As Massingill has not established that he is entitled to relief on
the merits of his claims, this unsubstantiated assertion is frivolous.
Massingill has not established any genuine issue of material fact that
would overcome the district court’s grant of summary judgment. See FED. R. CIV.
P. 56(c), (e); Little v. Liquid Air Corp, 37 F.3d 1069, 1075 (5th Cir. 1994)(en
banc). As a result, the judgment of the district court is AFFIRMED. For these

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reasons, Massingill’s motion for a temporary restraining order or preliminary
injunction is DENIED. See Lakedreams v. Taylor, 932 F.2d 1103, 1107 (5th Cir.
1991); and his motion for expedited consideration of his request for injunctive
relief is DENIED as unnecessary.

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