     Case: 10-41045     Document: 00511542705         Page: 1     Date Filed: 07/18/2011




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

                                                                            FILED
                                                                            July 18, 2011
                                     No. 10-41045
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

DAVID RASHEED ALI,

                                                  Plaintiff-Appellant

v.

NATHANIEL QUARTERMAN,

                                                  Defendant-Appellee


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                              USDC No. 9:09-CV-52


Before BENAVIDES, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
        David Rasheed Ali, Texas prisoner # 1077767, appeals from the district
court’s dismissal pursuant to 28 U.S.C. § 1915A of his civil rights complaint as
frivolous and for failure to state a claim. Ali contends that the district court
erred in dismissing his claims that the Texas Department of Criminal Justice
(TDCJ), through its director, violated his rights under the Religious Land Use
and Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S.C. § 2000cc-1, the
Equal Protection Clause of the Fourteenth Amendment, the Free Exercise

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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Clause of the First Amendment, and the Establishment Clause of the First
Amendment. He also claims that the district court abused its discretion in
denying his motion for a preliminary injunction, that the district court erred in
denying him a jury trial, and that the district court erred in failing to allow the
parties to consider a stay of the proceedings pending the resolution of a similar
case filed in the Southern District of Texas. At the heart of Ali’s claims is his
contention that his Muslim faith requires him to wear a fist-length beard and a
white head covering known as a Kufi and that the TDCJ grooming and head-
covering policies impede and infringe on his right to practice his religion.
      A court should dismiss a complaint filed by a prisoner if the complaint is
frivolous or fails to state a claim upon which relief may be granted.           See
§ 1915A(b)(1). We review the dismissal of a complaint under § 1915A de novo.
Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir. 2005). A complaint is frivolous if
it has no arguable basis in law or fact. Id. When reviewing a dismissal for
failure to state a claim, all well-pleaded facts are accepted as true and are
viewed in the light most favorable to the plaintiff. In re Katrina Canal Breaches
Litigation, 495 F.3d 191, 205 (5th Cir. 2007).
      Under RLUIPA, the government shall not impose a substantial burden on
the religious exercise of a person residing in or confined to an institution unless
the government can demonstrate that the burden is in furtherance of a
compelling governmental interest and is the least restrictive means of furthering
that compelling governmental interest. § 2000cc-1(a). Ali bears the initial
burden of proving that “the challenged government action ‘substantially burdens’
[his] ‘religious exercise.’” Mayfield v. Texas Dep’t of Criminal Justice, 529 F.3d
599, 613 (5th Cir. 2008). If he meets this burden of proof, the burden shifts to
the government to “demonstrate that its action was supported by a compelling
interest and that the regulation is the least restrictive means of carrying out
that interest.” Id.



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      Through his pleadings and his Spears hearing testimony, Ali alleged that
the TDCJ grooming policy, which requires that all inmates be clean-shaven
except for those who have been granted a medical exemption, imposed a
substantial burden on his religious exercise. He also responded to the state’s
interest in security and identification with alternatives to the grooming policy.
For instance, he suggested that TDCJ could place two photographs on the
identification card, one with a beard and one clean-shaven. He also suggested
that, during routine searches, he could be required to run his fingers through his
beard, as he is required to do through his hair, and that prison officials could use
their hand-held metal detectors on his beard. Similarly, Ali alleged that the
TDCJ head-covering policy, which allows inmates to wear religious caps within
their cell and during religious services, imposed a substantial burden on his
religious exercise, and he responded to the state’s purported security concerns
by proposing, inter alia, that prison officials could use hand-held metal detectors
over his Kufi.
      The respondent had the burden of disproving Ali’s assertion by explaining
why [Ali’s] alternative policy would be unfeasible, or why it would be less
effective in maintaining institutional security.” See 42 U.S.C. § 2000cc-2(b);
Sossamon v. Lone Star State of Texas, 560 F.3d 316, 335 (5th Cir. 2009) (“Some
of these options might not prove feasible. . .”), affirmed, Sossamon v. Texas, 131
S.Ct. 1651 (2011). Here, the respondent did not answer the complaint, nor did
any TDCJ official at the Spears hearing respond to the alternatives proposed by
Ali and explain why same would be unfeasible or less effective in maintaining
institutional security. See id. Thus, accepting Ali’s allegations as true, it does
not appear beyond doubt that Ali could prove no set of facts which would entitle
him to relief on these allegations. See Katrina Canal Breaches Litigation, 495
F.3d at 205. Accordingly, we vacate the dismissal of Ali’s RLUIPA claims and
remand this issue for further proceedings.



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      To establish a Fourteenth Amendment Equal Protection Clause violation,
Ali “must allege and prove that he received treatment different from that
received by similarly situated individuals and that the unequal treatment
stemmed from a discriminatory intent.” Taylor v. Johnson, 257 F.3d 470, 473
(5th Cir. 2001). Here, the district court did not err in dismissing Ali’s claim that
the grooming policy impermissibly discriminates on the basis of religion because
it allows an exemption for medical reasons but not religious reasons. An inmate
claiming a religious exemption from the TDCJ grooming policy is not, by
definition, similarly situated to inmates receiving a medical exemption from the
grooming policy. Additionally, the district court did not err in dismissing Ali’s
claim that the grooming policy impermissibly discriminates on the basis of
gender. See Longoria v. Dretke, 507 F.3d 898, 904-05 (5th Cir. 2007) (rejecting
argument that TDCJ’s grooming policies violate male prisoners’ equal protection
rights because female prisoners are allowed to grow longer hair than male
prisoners); Hill v. Estelle, 537 F.2d 214, 215-16 (5th Cir. 1976) (holding that
disparate grooming policies for male and female inmates did not violate the
Equal Protection Clause because the regulations did not impinge on a
fundamental right or create a suspect classification).
      Ali also appeals the dismissal of his First Amendment free exercise
challenges to TDCJ’s grooming and head-covering policies. In support, he argues
that each policy is not neutral because inmates with a medical reason are given
an exemption, while inmates with a religious reason are not so exempted, and
further that there are obvious, easy alternatives available to TDCJ that do not
impose a significant burden upon the department.             However, Ali’s First
Amendment claim challenging the grooming policy is precluded by circuit
precedent. Green v. Polunsky, 229 F.3d 486, 489-90 (5th Cir. 2000). His claim
that the head-covering policy violates the Free Exercise Clause also fails.
Nothing in the record supports Ali’s contention that the TDCJ regulations allow
for a medical exemption to the head-covering policy. Moreover, this court has

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upheld TDCJ’s restrictions on when and where a prisoner may wear a Kufi.
Muhammad v. Lynaugh, 966 F.2d 901, 902 (5th Cir. 1992). Thus, Ali does not
have a First Amendment right to wear a Kufi at times or in areas not permitted
by prison rules. Id.
      The record demonstrates that, until he filed his objections to the
magistrate judge’s report, Ali did not raise any claim challenging the policies at
issue as violating the Establishment Clause of the First Amendment.
Nevertheless, Ali’s argument on appeal regarding his purported Establishment
Clause claim is entirely conclusory, and he fails to address the issues relevant
to such a claim. His failure to brief arguments renders the Establishment
Clause issue abandoned. Hughes v. Johnson, 191 F.3d 607, 613 (5th Cir. 1999).
      In denying Ali’s request for preliminary injunctive relief with respect to
the TDCJ grooming policy, the district court determined, inter alia, that the
request was moot because Ali had been granted a temporary medical exemption
to the grooming policy.       However, the temporary nature of the medical
exemption, which may have expired in January 2011, reveals the continued
presence of a live controversy between the parties over the validity of the
grooming policy. See Hope Medical Group for Women v. Edwards, 63 F.3d 418,
422 (5th Cir. 1995). Because the district court’s decision to deny injunctive relief
rests, at least in part, on its erroneous conclusion that the request was moot, the
district court’s denial of Ali’s motion for a preliminary injunction with respect to
his RLUIPA claim challenging the grooming policy is vacated for the district
court, on remand, to reexamine Ali’s motion for preliminary injunctive relief.
However, Ali fails to address the denial of injunctive relief regarding the head-
covering policy: he therefore has abandoned that issue. Hughes, 191 F.3d at 613.
      Ali has not demonstrated that he is entitled to a jury trial because he
sought only declaratory and injunctive relief. See Baum v. Blue Moon Ventures,
LLC, 513 F.3d 181, 193 (5th Cir. 2008) (“[U]nless Congress has expressly
provided to the contrary, an injunction is an equitable remedy that does not

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invoke a constitutional right to a jury trial.”). Even if Ali had prayed for
damages, he would not be entitled to a jury trial on remand as he is not entitled
to monetary relief under RLUIPA. See Sossamon v. Texas, 131 S. Ct. 1651, 1663
(2011).
      Finally, for the first time on appeal, Ali argues that the district court
abused its discretion in dismissing his case without allowing the parties to
consider a stay of the proceedings pending the resolution of a similar case. This
court generally does not consider claims raised for the first time on appeal. See
Jennings, 602 F.3d at 657 & n.7; see also Stewart Glass & Mirror, Inc. v. U.S.
Auto Glass Discount Centers, Inc., 200 F.3d 307, 316-17 (5th Cir. 2000) (“It is a
bedrock principle of appellate review that claims raised for the first time on
appeal will not be considered.”).
      For the foregoing reasons, we AFFIRM the district court’s dismissal of
Ali’s Equal Protection and First Amendment claims as frivolous and for failure
to state a claim and the district court’s denial of his motion for a preliminary
injunction with respect to his RLUIPA claim challenging the head-covering
policy. We VACATE and REMAND the dismissal of Ali’s RLUIPA claims and
his motion for preliminary injunction with respect to his RLUIPA claim
challenging the grooming policy for further proceedings consistent with this
opinion. We express no view as to the ultimate resolution of these issues.




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