     Case: 18-20297      Document: 00514968653         Page: 1    Date Filed: 05/23/2019




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

                                                                                 FILED
                                      No. 18-20297                           May 23, 2019
                                                                            Lyle W. Cayce
ERIC DEMOND LOZANO,                                                              Clerk


              Plaintiff-Appellant,

v.

DEBORAH L. SHUBERT, Kitchen Captain, Texas Department of Criminal
Justice; ROBERT D. HERRERA, Head Warden, Texas Department of
Criminal Justice; PAUL B. WILDER, Assistant Warden, Texas Department of
Criminal Justice; DAVID E. NICHOLS, Chaplain, Texas Department of
Criminal Justice; AMY OLIVER, Grievance Coordinator, Texas Department of
Criminal Justice,

              Defendants-Appellees.


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:18-CV-1183


Before OWEN, WILLETT, and OLDHAM, Circuit Judges.
PER CURIAM: *
       On August 26, 2017, Texas prison officials temporarily evacuated Eric
Demond Lozano from a state prison in Otey, Texas (Stringfellow Unit), to a
state prison near Navasota, Texas (Pack Unit). Hurricane Harvey had just



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-20297    Document: 00514968653     Page: 2   Date Filed: 05/23/2019


                                 No. 18-20297

made landfall as Category 4 hurricane.          Lozano—a Muslim—claims he
received kosher meals at the Stringfellow Unit but not at the Pack Unit.
      Lozano brought a § 1983 suit against the defendants in their individual
capacities, hoping to force them to pay $2,000 in nominal damages and
$1,000,000 in punitive damages. He alleged Pack Unit officers violated the
First Amendment’s Free Exercise Clause and the Fourteenth Amendment’s
Equal Protection Clause by refusing to provide him Kosher meals. The district
court summarily dismissed Lozano’s complaint with prejudice under 28 U.S.C.
§ 1915A and denied him in forma pauperis (IFP) status on appeal.
      When a district court denies IFP status on appeal, a litigant has two
options. He can simply appeal and pay the filing fee. FED. R. APP. P. 3(e). Or
he can file an IFP motion in the court of appeals. FED. R. APP. P. 24(a)(5).
Lozano chose option two.       He appealed without paying, and asked for
permission to proceed IFP. Accordingly, we ask whether the district court
erred in concluding Lozano could not bring this appeal in good faith. Baugh v.
Taylor, 117 F.3d 197, 202 (5th Cir. 1997).
      First, Lozano’s free exercise claim fails. We have “already ruled that
prisons need not respond to particularized religious dietary requests to comply
with the First Amendment.” Baranowski v. Hart, 486 F.3d 112, 122 (5th Cir.
2007). We have also recognized the Religious Land Use and Institutionalized
Persons Act does not create a cause of action against defendants sued in their
individual capacities. DeMoss v. Crain, 636 F.3d 145, 151 (5th Cir. 2011).
Therefore, the dismissal of Lozano’s free exercise claim is affirmed.
      Lozano’s second claim is more complicated.          He argues that the
defendants violated the Equal Protection Clause by feeding Jewish prisoners
kosher food while refusing to serve him that same food or other halal food that
was available. The district court dismissed this claim because it concluded the



                                       2
    Case: 18-20297     Document: 00514968653     Page: 3   Date Filed: 05/23/2019


                                  No. 18-20297

kosher food served to Jewish inmates had been “donated by third parties to the
Jewish inmate evacuees.”
      “To establish an Equal Protection Clause violation, [a plaintiff] must
prove purposeful discrimination resulting in a discriminatory effect among
persons similarly situated.” Butts v. Martin, 877 F.3d 571, 590 (5th Cir. 2017).
An equal protection claim also requires a state actor to be the source of the
challenged discrimination.     See U.S. CONST. amend. XIV, § 1 (“No State
shall . . . deny to any person within its jurisdiction the equal protection of the
laws.”). There is no discriminatory state action where prison officials act as
mere conduits for a transfer from a third-party outside of the prison to an
inmate within its walls.       In that scenario, the State’s action is not
discriminatory, and the discriminatory action is not done by the State.
      Consider an example. Sarah, who is not incarcerated, sends a letter
addressed to her brother Stephen, a state prisoner. Prison officials operate an
internal mail system that distributes her letter—and many others—to the
intended addressee. No one thinks Stephen’s letter becomes the property of
the prison once it passes behind its walls. And no one thinks it would be an
equal protection violation for prison officials to duly deliver the letter to
Stephen without cutting Sarah’s letter in half to give some other inmate an
equal share. The State acts by distributing the mail, but Sarah discriminates
by not sending letters to other prisoners.
      The district court thought something similar was happening here. It
read the pleadings as contending prison officials simply refused to divert meals
earmarked for Jewish inmates to Muslim inmates like Lozano. That would not
be a problem.
      But Lozano’s allegations in his brief on appeal suggest a different
situation—one where prison officials either had permission to share those



                                        3
    Case: 18-20297    Document: 00514968653     Page: 4   Date Filed: 05/23/2019


                                 No. 18-20297

donations with non-Jewish inmates, or had other non-donated foods they
refused to furnish Lozano. That would be a problem. Prison officials would be
the source of discriminatory action if they refused to accept or distribute items
otherwise available on equal terms. See, e.g., Kaufman v. Pugh, 733 F.3d 692,
699–700 (7th Cir. 2013); Al-Amin v. Shear, 325 F. App’x 190, 193–94 (4th Cir.
2009); Crocker v. Durkin, 159 F. Supp. 2d 1258, 1275 (D. Kan. 2001); Varsanyi
v. Piazza, No. 3:CV-10-2072, 2015 WL 1643036, at *5, 8 (M.D. Penn. Apr. 9,
2015); Jackon v. Ellis, No. 3:7-CV-67, 2009 WL 2579394, at *4 (N.D. Fla. Aug.
18, 2009).
      It is possible that Lozano has pled or could plead an Equal Protection
claim. He alleges (and submits declarations to prove) that TDCJ dedicated a
portion of the Pack Unit kitchen to prepare and serve kosher meals during the
hurricane evacuation. He alleges TDCJ refused to serve him non-donated
halal foods from that kitchen. Lozano further alleges TDCJ bought kosher
meals to supplement the donated kosher meals and then refused to serve those
to him. Moreover, Lozano suggests (but does not clearly plead or argue) TDCJ
officials assembled the list of inmates who would receive the donated kosher
food, which in turn suggests TDCJ was responsible for denying Lozano kosher
meals. Finally, he alleges that two of the defendants laughed when he asked
for kosher foods, and one told him that he should have been a Jew rather than
a Muslim. Lozano allegedly lost 14 pounds and incurred multiple visits to the
infirmary because of the defendants’ actions.
      Even if the allegations in Lozano’s complaint do not state a claim under
the Equal Protection Clause, however, the district court did not notify Lozano
before it dismissed his claim with prejudice.       It thus denied Lozano an
“adequate opportunity to cure the inadequacies in his pleading.” Alderson v.
Concordia Par. Corr. Facility, 848 F.3d 415, 423 (5th Cir. 2017). He was not



                                       4
    Case: 18-20297     Document: 00514968653     Page: 5   Date Filed: 05/23/2019


                                  No. 18-20297

given notice and an opportunity to amend his complaint, he was not given a
questionnaire, and he was not afforded a Spears hearing. See id. “With the
benefit of more specific allegations, [Lozano] may be able to state a claim”
against one or more of the defendants for violating his right to equal protection.
Id. at 423–24.
      The district court erred by refusing to certify Lozano’s appeal for IFP
status. At this stage, we need not decide whether the facts ultimately establish
an equal protection violation. See Baugh, 117 F.3d at 202. Lozano’s motion to
proceed IFP is GRANTED. The dismissal with prejudice of Lozano’s free
exercise claim is AFFIRMED.        The dismissal with prejudice of his equal
protection claim is VACATED and REMANDED for further proceedings.




                                        5
