     Case: 13-11024      Document: 00512597064         Page: 1    Date Filed: 04/15/2014




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

                                                                                   FILED
                                    No. 13-11024                               April 15, 2014
                                  Summary Calendar
                                                                              Lyle W. Cayce
                                                                                   Clerk
MITCHELL WAGNER,

                                                 Plaintiff-Appellant

v.

GILBERT CAMPUZANO, Regional Director TDCJ, Region VI; EDWARD L.
WHEELER, Senior Warden; RICHARD G. LEAL, Assistant Warden,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 1:12-CV-205


Before REAVLEY, PRADO, and ELROD, Circuit Judges.
PER CURIAM: *
       Mitchell Wagner, Texas prisoner # 1543049, appeals the dismissal of his
42 U.S.C. § 1983 complaint against prison officials, alleging that they
retaliated against him and violated his right to freely exercise his religion
under the First Amendment; the Religious Land Use and Institutionalized
Persons Act (RLUIPA), 42 U.S.C. § 2000cc-1; and the Texas Religious Freedom



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 13-11024    Document: 00512597064     Page: 2     Date Filed: 04/15/2014


                                 No. 13-11024

Restoration Act (TRFRA), TEX. CIV. PRAC. & REM. CODE ANN. § 110.003. The
district court dismissed the federal claims with prejudice as frivolous pursuant
to 28 U.S.C. § 1915(e)(2)(B)(i), declined to exercise supplemental jurisdiction
over the TRFRA claim and dismissed it without prejudice, denied Wagner’s
motions for injunctive relief, and imposed a strike against Wagner pursuant to
§ 1915(g).
      The district court correctly concluded that Wagner’s retaliation claim
lacks an arguable basis in law and is therefore frivolous. See Brewster v.
Dretke, 587 F.3d 764, 767 (5th Cir. 2009); Jones v. Greninger, 188 F.3d 322,
324-25 (5th Cir. 1999).     We will not consider Wagner’s claim that the
suspension of inmate choirs and ban on musical instruments violated his right
to equal protection under the Fourteenth Amendment because this claim is
being raised for the first time on appeal. See Jennings v. Owens, 602 F.3d 652,
657 n.7 (5th Cir. 2010). However, for the following reasons, we conclude that
the district court abused its discretion in dismissing Wagner’s First
Amendment and RLUIPA claims as frivolous. See Brewster, 587 F.3d at 767.
      Wagner alleged that he is not allowed to play the piano during religious
services but that the Kairos organization has been exempted from the
suspension of inmate choirs and confiscation of musical instructions. His First
Amendment claim has an arguable basis in law in light of his allegation that
these restrictions are not being applied neutrally. See Mayfield v. Tex. Dep’t of
Criminal Justice, 529 F.3d 599, 607, 610 (5th Cir. 2008).
      As to his RLUIPA claim, these restrictions arguably substantially
burden Wagner’s exercise of religion by influencing him to act in a way that
violates his religious beliefs. See Sossamon v. Lone Star State of Texas, 560
F.3d 316, 332-34 (5th Cir. 2009). It is also arguable that these restrictions are
not justified by a compelling governmental interest achieved through the least



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                                No. 13-11024

restrictive means in light of Wagner’s allegation that another religious
organization is still permitted to play musical instruments. See id. at 334-35.
      For the foregoing reasons, the dismissal of Wagner’s retaliation claim as
frivolous is AFFIRMED. The dismissal of Wagner’s First Amendment and
RLUIPA claims as frivolous is VACATED and REMANDED for further
proceedings. The dismissal of Wagner’s TRFRA claim and denial of injunctive
relief are also VACATED and REMANDED for further proceedings because
these decisions rested on the conclusion that Wagner’s claims were frivolous.
The imposition of a strike against Wagner pursuant to § 1915(g) is
REVERSED. See Mayfield, 529 F.3d at 617. Last, Wagner’s incorporated
motion for the appointment of counsel on appeal to conduct oral argument is
DENIED as unnecessary.




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