     Case: 12-10441       Document: 00512283559         Page: 1     Date Filed: 06/21/2013




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

                                                                            FILED
                                                                           June 21, 2013
                                     No. 12-10441
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

DOMINGO ROBLEDO,

                                                  Plaintiff-Appellant

v.

RICHARD G. LEAL, Assistant Warden; RICHARD D. DANIEL, Captain;
TIMOTHY HOOPER, Captain of Security; CHARLES S. HENDRIX, Lieutenant
of Security; SUSAN WILBURN, Assistant Regional Director; EDWARD L.
WHEELER, Senior Warden,

                                                  Defendants-Appellees


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 1:11-CV-77


Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Domingo Robledo, Texas prisoner # 561997, appeals the magistrate judge’s
dismissal of his civil rights complaint as frivolous. The complaint alleged that
he was subjected to strip searches in violation of the First, Fourth, Eighth, and
Fourteenth Amendments; the Religious Land Use and Institutionalized Person’s
Act (“RLUIPA”), 42 U.S.C. § 2000cc; 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-10441       Document: 00512283559    Page: 2    Date Filed: 06/21/2013

                                  No. 12-10441

Restoration Act (“TRFRA”). Robledo’s motion seeking to file an out-of-time reply
brief is GRANTED.
      We review the magistrate judge’s dismissal of the complaint as frivolous
for an abuse of discretion. Norton v. Dimazana, 122 F.3d 286, 291 (5th Cir.
1997). A complaint is frivolous and lacks an arguable basis in law if it is based
upon an indisputably meritless legal theory. Neitzke v. Williams, 490 U.S. 319,
327 (1989). A complaint is factually frivolous if the “factual contentions are
clearly baseless.” Id.
      On appeal, Robledo challenges the magistrate judge’s: (1) dismissal as
frivolous of his claims alleging that strip searches conducted following Christian
worship services in the prison chapel violated the RLUIPA and the Fourth
Amendment and were retaliatory; (2) denial of his motion seeking a preliminary
injunction; (3) decision declining to exercise jurisdiction over his pendent state
law claims under the TRFRA; and (4) imposition of a strike pursuant to 28
U.S.C. § 1915(g), in dismissing his complaint. In Robledo’s statement of issues
in his appellate brief, he lists the magistrate judge’s denial of his motion for the
appointment of counsel as an issue for appeal, but he has failed to brief the
issue, abandoning it for the purposes of appeal. See Brinkmann v. Dallas Cnty.
Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987). Although Robledo
states that he alleged in the district court that Administrative Directive 03.22
was disparately applied, Robledo does not challenge the magistrate judge’s
determination that a violation of prison policy, standing alone, is not a
constitutional violation. See Myers v. Klevenhagen, 97 F.3d 91, 94 (5th Cir.
1996). Robledo also does not challenge the magistrate judge’s determination
that his allegations regarding the removal of chairs from the chapel and
regarding limitations on the number of inmates permitted to attend worship
services failed to demonstrate that he was deprived of a constitutional right. He
therefore has abandoned any challenge to these issues on appeal.                See
Brinkmann, 813 F.2d at 748.

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                                       No. 12-10441

      Based on the facts as alleged by Robledo in his complaint and at the
Spears1 hearing, Robledo’s RLUIPA, Fourth Amendment, and retaliation claims
are not based upon an indisputably meritless legal theory, and his factual
contentions are not clearly baseless. See Neitzke, 490 U.S. at 327. Therefore, the
magistrate judge’s dismissal of these claims on the ground that the claims were
frivolous was an abuse of discretion. See Norton, 122 F.3d at 291. Thus, we
VACATE the magistrate judge’s dismissal of these claims as frivolous and
REMAND for further proceedings. The magistrate judge’s decision declining to
exercise pendent jurisdiction over Robledo’s TRFRA claims and the decision
denying injunctive relief rested on the erroneous conclusion that Robledo’s
claims were frivolous; therefore the magistrate judge’s rulings on those issues
are also VACATED and we REMAND for further proceedings. We express no
view on how the magistrate judge should rule on remand. Finally, we also
REVERSE the magistrate judge’s decision to impose a strike against Robledo.
See Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir. 1996).

    AFFIRMED IN PART, VACATED IN PART, AND REMANDED;
IMPOSITION OF STRIKE REVERSED; MOTION TO FILE OUT-OF-TIME
REPLY BRIEF GRANTED.




      1
          Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).

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