     Case: 13-60451      Document: 00512584727         Page: 1    Date Filed: 04/03/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 13-60451
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                             April 3, 2014
                                                                           Lyle W. Cayce
                                                                                Clerk
RAYMOND V. GUTIERREZ,

                                                 Plaintiff−Appellant,

versus

CORRECTIONS CORPORATION OF AMERICA,

                                                 Defendant−Appellee.




                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                              USDC No. 3:13-CV-98




Before JOLLY, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM: *
       Raymond Gutierrez, California prisoner # F-12264, appeals the



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                 No. 13-60451

dismissal of his 42 U.S.C. § 1983 action against Corrections Corporation of
America (“CCA”) as frivolous and for failure to state a claim under 28 U.S.C.
§ 1915(e)(2)(B). He also moves for appointment of counsel; that motion is
DENIED.
      Gutierrez is confined in a CCA facility in Mississippi. His action arose
from the denial of his request for Catholic-oriented television programming
from the Eternal Word Television Network (“EWTN”) in light of the broadcast
of non-denominational programming from the Trinity Broadcasting Network
(“TBN”), which Gutierrez characterizes as Protestant-oriented.
      Gutierrez contends that the district court erred by denying his post-
judgment motion to amend the complaint. He avers that he stated his Equal
Protection Clause claim in the motion to amend sufficiently for that claim to
proceed. He lists other claims that he also put into his motion to amend, but
he fails to brief those claims or to address whether the district court erred by
declining to allow him to amend the complaint to add them. See Yohey v.
Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). The district court did not abuse
its discretion by denying Gutierrez’s postjudgment motion to amend the com-
plaint to elaborate on the Equal Protection Clause argument that already had
been raised and decided. See Briddle v. Scott, 63 F.3d 364, 379 (5th Cir. 1995).
      Gutierrez claims he was deprived of equal protection of the law because
CCA does not provide EWTN programming for Catholic prisoners but provides
TBN programming for Protestant prisoners. He notes that an Arizona district
court found that a similar claim he raised while incarcerated in a CCA facility
there stated a violation sufficient to require a response before that case was
dismissed for failure to exhaust administrative remedies.
      A complaint is frivolous if it lacks “an arguable basis in law or fact,” and
dismissal on that ground is reviewed for abuse of discretion. Berry v. Brady,



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                                  No. 13-60451

192 F.3d 504, 507 (5th Cir. 1999). Dismissal for failure to state a claim is
reviewed de novo, applying the standard used to review a dismissal under Rule
12(b)(6) of the Federal Rules of Civil Procedure. Hart v. Hairston, 343 F.3d
762, 763–64 (5th Cir. 2003). “To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to state a claim to relief that
is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal
quotation marks and citation omitted). “Factual allegations must be enough
to raise a right to relief above the speculative level, on the assumption that all
the allegations in the complaint are true (even if doubtful in fact).” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007). Because the district court dis-
missed the complaint both as frivolous and for failure to state a claim, the dis-
missal is reviewed de novo. See Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir.
2005).
      To establish a claim under the Equal Protection Clause, Gutierrez “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).
The Clause does not require “that every religious sect or group within a
prison―however few in numbers―must have identical facilities or personnel”;
it requires only that prison officials afford inmates “reasonable opportunities
. . . to exercise the religious freedom guaranteed by the First and Fourteenth
Amendment[s].” Baranowski v. Hart, 486 F.3d 112, 123 (5th Cir. 2007) (inter-
nal quotation marks and citation omitted).
      Gutierrez does not allege any discriminatory intent on the part of CCA.
A document attached to his complaint indicated that the Religious Review
Committee (“RRC”) reporting to the California Department of Corrections
indicated that TBN is a “non-denominational channel” carrying programming



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                                  No. 13-60451

from various denominations. It is not evident from the record whether any
specifically Catholic programming is carried on the channel or whether the
teachings on the channel could be considered consistent with Catholic doc-
trines and practices, and CCA’s prisons presumably house a fair number of
Catholic prisoners. However, the RRC determined that it was not feasible to
provide each religious denomination with a specific television channel. If CCA
were required to provide every prisoner of a particular faith with access to a
religion-specific television channel because TBN is broadcast into CCA facili-
ties, that might “spawn a cottage industry of litigation and could have a nega-
tive impact on prison staff, inmates, and prison resources.” Id. at 122 (internal
quotation marks and citation omitted). Moreover, Gutierrez has made no alle-
gation suggesting that Catholic prisoners are not able to attend Mass or engage
in the sacraments, study the Bible and other teachings, or otherwise exercise
their right to practice their religion. See id. at 123. Additionally, Gutierrez
has no constitutionally protected right to watch television.         Montana v.
Comm’ns Court, 659 F.2d 19, 23 (5th Cir. Unit A Sept. 1981) (per curiam).
      Gutierrez’s allegations suggest at most that Catholic prisoners have less
access to television programming specific to their faith than do Protestant pris-
oners. Gutierrez has failed to state a plausible claim of a violation of the Equal
Protection Clause. See Iqbal, 556 U.S. at 678. Additionally, the Arizona dis-
trict court’s finding that Gutierrez’s equal protection claim was sufficient to
warrant a response was not relevant to the ultimate dismissal of that com-
plaint, see Gutierrez v. Corr. Corp. of Am., No. 2:10-CV-00117, 2011 WL
2836705 (D. Ariz. July 18, 2011), is not precedential in this circuit, see
Orellana-Monson v. Holder, 685 F.3d 511, 520 (5th Cir. 2012), and is not
persuasive in light of this court’s jurisprudence addressing the Equal Protec-
tion Clause, dismissal for failure to state a claim, and dismissal as frivolous.



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The district court did not err by dismissing Gutierrez’s complaint as frivolous
and for failure to state a claim. See Geiger, 404 F.3d at 373.
      The appeal is DISMISSED as frivolous. See 5TH CIR. R. 42.2. The dis-
missal of the § 1983 action and the dismissal of this appeal both count as a
strike for purposes of 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d
383, 388 (5th Cir. 1996). Gutierrez is cautioned that, if he accumulates three
such strikes, he will no longer be allowed to proceed IFP in any civil action or
appeal filed while he is incarcerated or detained in any facility unless he “is
under imminent danger of serious physical injury.” § 1915(g).




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