### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 18

- 20297

ERIC DEMOND LOZANO , 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, Chapl a in, Texas Department of Cr iminal Justice; AMY OLIVER, Grievance Coordinator, Texas Department of Criminal Justice , Defendant s - Appellee s .
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 s tate prison in Otey, Texas (Stringfellow Unit ) , to a

s tate prison near Navasota, Texas (Pack Unit ). Hurricane Harvey had just

* Pursuant to 5 TH C IR

. R. 47.5 , the court has dete rmined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED May 23, 2019 Lyle W. Cayce Clerk Case: 18-20297 Document: 00514968653 Page: 1 Date Filed: 05/23/2019No. 18

- 20297

2 made landfall as Category 4 hurricane

. Lozano

— a Muslim

— claims he received k osher 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

c ourt 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 f iling fee. F ED

. R. A PP

. P. 3(e). Or he can file an IFP motion in the court of appeals. F ED

. R. A PP

. 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 co urt erred in concluding Lozano could not bring this appeal in good faith. Baugh v. Taylor , 117 F.3d 197, 202 (5th Cir. 1997). First, L o zano’s free exercise claim fails

. W e 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 d efendants sued in the ir individual capacities. DeMoss v. Crain , 636 F.3d 145, 151 (5th Cir. 2011)

. Therefore, the dismissal of L o zano’s free exercise claim is affirmed. L o zano’s second claim is more complicated

. He argues that the defendants violated t he 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 Case: 18-20297 Document: 00514968653 Page: 2 Date Filed: 05/23/2019No. 18

- 20297

3 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). A n equal protection claim also requires a state actor to be the source of the challenged discrimination. See U.S. C ONST

. amend. X IV , § 1 (“No State shall

. . . deny to any person within its jurisdiction the equa l 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, t he S tate ’s action is no t discrimina tory , a nd 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 s tate 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 lett er 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 hap pening 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 no t be a problem. But Lozano’s allegations in his brief on appeal suggest a differen t situation

— one where prison officials either had permission to share those Case: 18-20297 Document: 00514968653 Page: 3 Date Filed: 05/23/2019No. 18

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4 donations with non

- Jewish inmates, or had other non - donated foods they refused to furnish Lozano. That would be a problem

. P rison officials would be the source of discriminatory action if they refuse d 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 L o zano has pled or could plead a n Equa l 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

mea l s to supplement the donated kosher mea ls 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 k osher meals . Finally, he alleges that two of the defendants laugh ed 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 Pr otection Clause , however, t he 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, 42 3 (5th Cir. 2017) . He was not Case: 18-20297 Document: 00514968653 Page: 4 Date Filed: 05/23/2019No. 18

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5 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 sta te a claim” against one or more of the defendants for violating his right to equal protection. Id. at 423

– 24. T he district court erred by refus ing 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. T he 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. Case: 18-20297 Document: 00514968653 Page: 5 Date Filed: 05/23/2019