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

                                             FILED
                                                         September 25, 2009
                             No. 08-61127
                           Summary Calendar             Charles R. Fulbruge III
                                                                Clerk

OSVALDO R. GONZALEZ,

                                       Plaintiff–Appellant,

v.

CORRECTIONS CORPORATION OF AMERICA, Owner of Tallahatchie County
Correctional Facility; CANTEEN CORRECTIONAL SERVICES; ROBERT
ADAMS, Warden, Tallahatchie County Correctional Facility; SCOTT
HOSEMAN, Food Service Manager, Tallahatchie County Correctional Facility;
J WATSON, Chaplain, Tallahatchie County Correctional Facility; “UNKNOWN”
STRONG, Canteen Correctional Services, Tallahatchie County Correctional
Facility; “UNKNOWN” ANDERSON, Canteen Correctional Services,
Tallahatchie County Correctional Facility; “UNKNOWN” KLINE, Facility J-B
Officer, Corrections Corporation of America; “UNKNOWN” LOUIS, Officer,
Corrections Corporation of America; “UNKNOWN” HARRIS, Officer, Corrections
Corporation of America; TYWONE THOMAS, Facility E 1, 3, and 5 Unit
Manager at Tallahatchie County Correctional Facility; J SOSA, Facility J-B
Officer, Corrections Corporation of America; “UNKNOWN” ROBINSON,
Canteen Correctional Services,

                                       Defendants–Appellees.


               Appeal from the United States District Court
                 for the Northern District of Mississippi
                          USDC No. 2:08-CV-89
                                       No. 08-61127

Before GARZA, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
       Osvaldo R. Gonzalez, California prisoner # K26531, commenced this civil
rights action pursuant to 42 U.S.C. § 1983 and the Religious Land Use and
Institutionalized Persons Act (RLUIPA) alleging that a substantial burden was
being placed on his right to practice his religion due to the meals served by the
defendants at the private correctional facility in Mississippi where he is housed.
Gonzalez is a Muslim and contends that he cannot eat the regular food trays
provided by the prison because they violate his religious tenets.                  Gonzalez
asserted that the vegetarian meals and the kosher meals provided by the prison
do not violate the Islamic prohibition on eating meat that is non-halal. Gonzalez
contended that he was being denied religious meals, which resulted in his being
denied all food on certain occasions. He also contended that the food that was
provided often consisted only of bread and cheese and was nutritionally
inadequate. He asserted that this raised his cholesterol levels, for which he took
medication, and made him feel dizzy and sick. Gonzalez argued that he was not
permitted by prison officials to eat the kosher meals because he was not Jewish
and that the cafeteria often ran out of vegetarian meals before he was served.
Although the defendants accepted his suggestion of a religious meal-card
program by which he could obtain the vegetarian meals, Gonzalez asserted that
this did not resolve the problem because he was still denied such meals on
numerous occasions after receiving the card.                 Gonzalez argued that the
defendants’ actions were taken with deliberate indifference to his constitutional
rights under the First, Eighth, and Fourteenth Amendments.
       The district court dismissed Gonzalez’s complaint for failure to state a
claim. The court determined that the First Amendment did not require 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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prison to provide a diet that comported with Gonzalez’s religious beliefs; that he
had not stated an equal protection claim because the prison had implemented
the religious meal-card program and had a policy of providing Muslim inmates
with a vegetarian diet, and the intermittent failure to provide this diet did not
rise to the level of a constitutional violation; that he had not stated an Eighth
Amendment claim because he had not sought medical treatment for the
allegedly ill effects he suffered from the prison diet; and that the 13 meals that
he had missed over the course of an 18-month period did not constitute a
substantial burden on the exercise of his religion under the RLUIPA.
      We review the district court’s dismissal of a complaint for failure to state
a claim de novo. Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir. 2005); Harris v.
Hegmann, 198 F.3d 153, 156 (5th Cir. 1999). A complaint fails to state a claim
when it does not contain “enough facts to state a claim to relief that is plausible
on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has
facial plausibility when the plaintiff pleads factual content that allows the court
to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). Because Gonzalez is
proceeding pro se, we liberally construe his allegations. See Haines v. Kerner,
404 U.S. 519, 520-21 (1972) (per curiam).
      The district court stated that it had considered Gonzalez’s amended
complaint and his motion for a temporary restraining order (TRO) or a
preliminary injunction. However, in a sworn declaration supporting the motion
for injunctive relief, Gonzalez asserted that he had been denied meals on 21 days
between June 5, 2008, and July 15, 2008. Gonzalez contended that the actions
of which he had complained in his complaint were continuing, even after
implementation of the meal-card program in May 2008. Thus, the district court
erred in concluding that Gonzalez had asserted that he was deprived of only a
few isolated meals. Additionally, the district court’s conclusion that Gonzalez
could eat the regular tray provided by the prison if a meat substitute was

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provided is contrary to Gonzalez’s allegations, and it is not clear that such an
option was available.    Because Gonzalez has asserted that two diets that
comport with the halal requirements of his religion are available at the
prison—albeit one of those diets is available only to prisoners of another
religion—and he has asserted that the denial of such a diet has continued
following the implementation of the meal-card program, his complaints are
adequate to state a claim under the First and Fourteenth Amendments, as well
as the RLUIPA. See Cruz v. Beto, 405 U.S. 319, 322 (1972) (per curiam);
Baranowski v. Hart, 486 F.3d 112, 125 (5th Cir. 2007); Adkins v. Kaspar, 393
F.3d 559, 567-68 (5th Cir. 2004).
      The district court’s determination that Gonzalez’s Eighth Amendment
claim was deficient because he had not sought medical treatment is misplaced
given his submissions showing that his cholesterol level was high and that he
was receiving medication for this condition. Additionally, although isolated
instances of meal deprivation are not constitutionally cognizable, in light of
Gonzalez’s assertion that the deprivation of meals is continuing, his allegations
are sufficient to state a claim. See Berry v. Brady, 192 F.3d 504, 507 (5th Cir.
1999); Eason v. Thaler, 14 F.3d 8, 10 (5th Cir. 1994).
      We lack jurisdiction to review the district court’s denial of a TRO. In re
Lieb, 915 F.2d 180, 183 (5th Cir. 1990). However, because the district court’s
determination to deny injunctive relief rests on its erroneous conclusion that
Gonzalez failed to state a claim, the district court should reexamine the motion
for preliminary injunctive relief.
      Accordingly, we VACATE and REMAND the dismissal of Gonzalez’s
complaint and his motion for preliminary injunctive relief to the district court
for further proceedings consistent with this opinion. We express no view as to
the ultimate resolution of these issues.




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