     Case: 18-20229      Document: 00515070416        Page: 1     Date Filed: 08/09/2019




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


                                   No. 18-20229                               FILED
                                 Summary Calendar                        August 9, 2019
                                                                         Lyle W. Cayce
                                                                              Clerk



ERIC DEMOND LOZANO,

                                                Plaintiff−Appellant,

versus

LORIE DAVIS, Director,
Texas Department of Criminal Justice, Correctional Institutions Division,

                                                Defendant−Appellee.




                   Appeal from the United States District Court
                        for the Southern District of Texas
                                 No. 4:16-CV-2507




Before DAVIS, SMITH, and DUNCAN, Circuit Judges.
PER CURIAM: *

      Eric Lozano, Texas prisoner #1915276, appeals a summary judgment on


      * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in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. 18-20229

his claimed violations of the Religious Land Use and Institutionalized Persons
Act (“RLUIPA”) and his constitutional rights to the free exercise of religion and
to equal protection. Lozano contends that the defendant director discriminated
against him and substantially burdened the free exercise of his Islamic faith
by denying him free halal meals while simultaneously providing free kosher
meals for Jewish inmates.

      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 also agree with the district court that Lozano failed to present evi-
dence that he was treated differently from similarly situated inmates. See id.
at 123 & n.6. Further, Lozano’s conclusional assertion that he was treated
differently on account of the defendant’s discriminatory intent is insufficient
to show a genuine material factual dispute, “so summary judgment in favor of
the defendant[] was proper” on this claim. Sossamon v. Lone Star State of
Texas, 560 F.3d 316, 336 (5th Cir. 2009).

      With respect to Lozano’s RLUIPA claim, the district court concluded that
Lozano failed to demonstrate a substantial burden on his religious exercise
because he had been transferred to the Stringfellow Unit, where he has access
to free kosher meals. Because Lozano’s assertions were not declared under
penalty of perjury, the court declined to consider Lozano’s factual assertions in
opposition to summary judgment (including that kosher meals do not meet his
religious needs as a member of the Hanafi school of Sunni Islam).

      The district court should have first considered whether, under the 2010
amendments to Federal Rule of Civil Procedure 56, Lozano’s unsworn asser-
tions could have been presented in an admissible form. See Lee v. Offshore



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                                  No. 18-20229

Logistical & Transp., L.L.C., 859 F.3d 353, 354−55 (5th Cir. 2017). Such a
consideration is particularly relevant where a pro se plaintiff’s allegations form
his entire response in opposition to summary judgment. See Davis v. Hernan-
dez, 798 F.3d 290, 294−96 (5th Cir. 2015).

      Lozano appeals the denial of his motion for appointment of counsel. In
determining that Lozano had not presented exceptional circumstances, the dis-
trict court did not abuse its “considerable discretion” by denying counsel.
Naranjo v. Thompson, 809 F.3d 793, 801 (5th Cir. 2015) (internal quotation
marks and citation omitted). Moreover, Lozano has adequately presented his
arguments on appeal, and we agree that his case presents no exceptional cir-
cumstances. Therefore, the denial of counsel is AFFIRMED, and Lozano’s
motion for counsel on appeal is DENIED. See Cooper v. Sheriff, Lubbock Cty.,
Tex., 929 F.2d 1078, 1084 (5th Cir. 1991).

      In light of the foregoing, the summary judgment on the constitutional
claims is AFFIRMED. We VACATE and REMAND the RLUIPA claim for con-
sideration of the summary judgment evidence under current Rule 56, including
whether Lozano’s unsworn assertions can be presented in an admissible form.
We express no view on what matters the district court can address on remand
or on the ultimate merits of any issue not decided in this opinion.




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