                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                November 28, 2003

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 02-11382
                         Summary Calendar


MICHAEL LEE HASTEY,

                                    Plaintiff-Appellant,

versus

GEORGE W. BUSH, Etc., Et Al.,

                                    Defendants,

RICK PERRY, Governor of Texas;
JOHN CORNYN, Attorney General of Texas,

                                    Defendants-Appellees.

                      --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                     USDC No. 5:02-CV-234-C
                      --------------------

Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.

PER CURIAM:*

     Michael Lee Hastey appeals from the dismissal of his claims

against Governor Rick Perry and former Attorney General of Texas

John Cornyn.   Hastey moves for leave to file a second amended

complaint; his motion is DENIED.   He moves for this court to

suspend Texas’s animal protection laws; his motion is DENIED.



     *
        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that this opinion should not be published and is not precedent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.
                            No. 02-11382
                                 -2-

     Hastey contends that TEX. PENAL CODE ANN. § 42.09 (Vernon

2003), which penalizes cruelty to animals violates the Fourth,

Fifth, Ninth, Tenth, and Fourteenth Amendments; that the statute

violates the Establishment and Free Exercise Clauses of the First

Amendment; that the district court erred by dismissing his action

with prejudice; and that the district court erred by denying his

motion to amend his complaint.   Hastey’s contentions are

unavailing.

     Hastey’s Fourth, Fifth, Ninth, and Fourteenth Amendment

contentions are unripe for review, as he has not alleged that any

actions have been taken against him pursuant to the authority of

the challenged statute.    See Orix Credit Alliance, Inc. v. Wolfe,

212 F.3d 891, 895-96 (5th Cir. 2000).      We do not address Hastey’s

Tenth Amendment claim, as it is raised for the first time on

appeal.    See Leverette v. Louisville Ladder Co., 183 F.3d 339,

342 (5th Cir. 1999).

     Hastey has not alleged facts suggesting government coercion

regarding religion or actual interference with his religious

beliefs.   The district court did not err by dismissing his Free

Exercise Clause claim for failure to state a claim.      See Murray

v. City of Austin, 947 F.2d 147, 152 (5th Cir. 1991).      Section

42.09, on its face, has the secular purpose of providing for

humane treatment of animals.   The primary effect of the statute

neither advances not inhibits religious doctrine -- rather, the

primary effect is to protect animals.      The statute does not

contain provisions leading to excessive government entanglement
                             No. 02-11382
                                  -3-

in religion.   The district court did not err by dismissing

Hastey’s Establishment Clause claim for failure to state a claim.

Id. at 153.

     Because the district court lacked jurisdiction to address

Hastey’s claims under the Fourth, Fifth, Ninth, and Fourteenth

Amendments, the dismissal of those claims should have operated

without prejudice.    See Cargill Ferrous Intern. v. SEA PHOENIX

MV, 325 F.3d 695, 705 (5th Cir. 2003).      Finally, because the

district court denied Hastey’s motion for leave to amend after

Hastey already had filed his notice of appeal, we lack

jurisdiction to address whether the district court erred by

denying the motion.    See United States v. Carr, 979 F.2d 51, 55

(5th Cir. 1992).

     AFFIRMED AS MODIFIED.    MOTION FOR LEAVE TO AMEND DENIED.

MOTION TO SUSPEND LAWS DENIED.
