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

                                                FILED
                                                                 July 10, 2009
                               No. 08-40620
                             Summary Calendar               Charles R. Fulbruge III
                                                                    Clerk

KEVIN BARNES

                                           Plaintiff-Appellant

v.

DIRECTOR CHAPLANCY BILL PIERCE; WARDEN JOSEPH CASAL;
ASSISTANT WARDEN A IGLESIAS; MAJOR CAROL MONROE; JOBETH
SMITH, Chaplaincy Department; GARY HUNTER; CRYSTAL IRVIN, Grievance
Coordinator; GARY L JOHNSON, EXECUTIVE DIRECTOR, TEXAS
DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION; MRS
LINCKE, Chaplaincy Department; RANDY MUELLER, Correctional Officer;
BRUCE PETERSON; IMAN OMAR SHAKUR; TEXAS BOARD OF CRIMINAL
JUSTICE; TEXAS DEPARTMENT OF CRIMINAL JUSTICE; ROGER WILLIS,
JR; Mr. WORCHESTER, Chaplaincy Department

                                           Defendants-Appellees


                 Appeal from the United States District Court
                      for the Southern District of Texas
                            USDC No. 6:05-CV-14


Before REAVLEY, WIENER, and PRADO, Circuit Judges.
PER CURIAM:*




      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                  No. 08-40620

      Kevin Barnes, Texas prisoner # 1063303, appeals the summary judgment
dismissal of his 42 U.S.C. § 1983 suit seeking damages and injunctive and
declaratory relief. Barnes’s complaint alleged that his rights under the First
Amendment, the Equal Protection Clause, and the Religious Land Use and
Institutionalized Persons Act (RLUIPA) were violated on the following bases:
(1) while on cell restriction, he was precluded from participating in any religious
services (cell-restriction claim); and (2) as a medium-custody inmate, he was able
to participate in only one primary religious service per week (medium-custody
claim) and was therefore unable to attend weekly Taleem services for Muslim
inmates. We review the district court’s summary judgment determination de
novo. See Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 912 (5th Cir. 1992).
      Barnes challenges the district court’s holding that certain of the
defendants were not liable because they were not personally involved in the
alleged constitutional violations. We pretermit discussion of this, upholding the
district court’s summary judgment dismissal on other bases. See Brewer v.
Wilkinson, 3 F.3d 816, 820 (5th Cir. 1993).
      During the pendency of Barnes’s appeal, the Texas Department of
Criminal Justice-Institutional Division adopted a policy allowing all general
population inmates on cell restriction to attend religious services, including
Muslim services. Barnes is a general population inmate, and his claims for
injunctive and declaratory relief under the First Amendment and the RLUIPA
with regard to his cell-restriction issue are moot. See Sossamon v. Lone Star
State of Texas, 560 F.3d 316, 326 (5th Cir.), petition for cert. filed, No. 08-1438
(Feb. 17, 2009). The district court’s judgment is therefore vacated in part, and
the case is remanded to the district court for dismissal of Barnes’s requests for
injunctive and declaratory relief relating to his cell-restriction claim. See id. at
326 & n.15; Motient Corp. v. Dondero, 529 F.3d 532, 537 (5th Cir. 2008).
      Barnes is not entitled to damages under the RLUIPA, Sossamon, 560 F.3d
at 331; nevertheless, he would be entitled to nominal damages if he could

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establish that the enforcement of the cell-restriction policy violated his First
Amendment rights. See Lewis v. Woods, 848 F.2d 649, 651 (5th Cir. 1988). As
in Sossamon, however, we do not reach the issue whether Barnes’s cell-
restriction claim stated a First Amendment violation because Barnes has
pointed us to no cases rendering the defendants’ actions under the cell-
restriction policy unreasonable in light of clearly established law. See Sossamon,
560 F.3d at 336. Therefore, the defendants are entitled to qualified immunity
on this First Amendment claim. See Freeman v. Gore, 483 F.3d 404, 410-11 (5th
Cir. 2007).
      With regard to his medium-custody claim, the district court held that the
policy of limiting medium-custody inmates to only one primary religious service
per week was not substantially burdensome to Barnes in light of the alternative
means of exercising his religious rights and, additionally, was rationally related
to legitimate security concerns. Barnes argues that the district court ignored
evidence establishing that the policy of prohibiting medium-custody Muslim
inmates from attending Taleem services, a non-primary religious service, has no
logical connection to the prison’s legitimate interest in security.
      An inmate’s right to the free exercise of his religion is subject to reasonable
restrictions and limitations necessitated by penological goals. Turner v. Safley,
482 U.S. 78, 89 (1987). Of the several factors relevant to determining the
reasonableness of prison policy or actions by prison officials, Barnes challenges
whether the regulation is logically connected to the legitimate governmental
interests in security. See id. at 89-91. In support thereof, he points to summary
judgment evidence that medium and minimum-custody inmates are allowed to
intermingle in non-religious contexts and evidence which he contends indicates
that the policy of prohibiting medium and minimum-custody inmates from
attending religious services together was implemented only after Barnes filed
the instant suit. Upon our review, however, Barnes’s evidence does not create
a genuine issue for trial regarding whether security concerns justify limiting

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                                  No. 08-40620

medium-custody inmates to one primary religious service per week.             See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). Barnes has therefore
not shown that the district court’s disposition of his First Amendment claim was
erroneous.
      With regard to his RLUIPA claim, Barnes bears the burden of persuasion
to show that the challenged government action imposes a “‘substantial burden’
on his religious exercise.” Adkins v. Kaspar, 393 F.3d 559, 567 (5th Cir. 2004).
Barnes has failed to assign error to and brief the district court’s determination
that Taleem services were merely a study group and that Barnes was not
substantially burdened by his exclusion from that study group when he still had
the ability to independently read the Koran. By failing to assign error to this
determination, Barnes has waived review of the district court’s disposition of his
RLUIPA claim. See Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d
744, 748 (5th Cir. 1987).
      With regard to his equal protection claim, Barnes argues that he has
adduced evidence establishing that medium-custody Christian inmates are able
to attend non-primary religious services, while medium-custody Muslim inmates
may not.     To establish an equal protection violation, Barnes “must prove
purposeful discrimination resulting in a discriminatory effect among persons
similarly situated.” Baranowski v. Hart, 486 F.3d 112, 123 (5th Cir.), cert.
denied, 128 S. Ct. 707 (2007) (internal quotation marks and citation omitted).
The evidence on which Barnes relies, however, does not support a finding of
discrimination; the evidence instead suggests that all medium-custody inmates,
regardless of faith, were allowed to attend a particular religious service. Barnes
has therefore not shown evidence of disparate treatment or purposeful
discrimination to support an equal protection claim.
      Finally, Barnes argues that the district court abused its discretion in
denying his motion for discovery. The district court was within its discretion to
deny discovery given that the defendants raised a qualified immunity defense.

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                                  No. 08-40620

See Williamson v. U.S. Dep’t Agriculture, 815 F.2d 368, 382 (5th Cir. 1987).
Moreover, evidence similar to that which Barnes sought to discover had already
been introduced in conjunction with Barnes’s summary judgment opposition and
evaluated by the district court in its order denying F ED. R. C IV. P. 59(e) relief.
Barnes has therefore not shown an abuse of discretion on the part of the district
court in denying his discovery request.
DISMISSED IN PART; AFFIRMED IN PART; VACATED IN PART;
REMANDED.




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