* Pursuant to 5 TH C IR

. 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 5 TH C IR

. R.

47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

January 9, 2004

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 03-40408

Summary Calendar

AARON THOMPSON,

Plaintiff-Appellant,

versus

WAYNE SCOTT; GARY JOHNSON, Warden;

BRENDA CHANEY; RICKY DOSS;

AMADO IGLESIAS; JOSHUA MILES;

TONIA PERRY; BRUCE V. PETERSON;

LANA PODSIM; ROGER WILLIS;

DAVID WORCESTER,

Defendants-Appellees.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. V-01-CV-1

Before GARWOOD, EMILIO M. GARZA and BENAVIDES, Circuit Judges.

PER CURIAM: *

Aaron Thompson, Texas prisoner #872772, appeals the grant of

summary judgment for the defendants in his civil-rights suit underthe First Amendment and the Religious L and Use and

Institutionalized Persons Act (RLUIPA) of 2000. Thompson’s suit

seeks only injuncti ve relief against named individual defendants

who are officials or employees of the Texas Department of Criminal

Justice (TDCJ).

Thompson first argues that TDCJ has not updated its Native

American religion policy. He claims that this is evidenced by

TDCJ’s requirement that inmates pass a written test on Native

American practices in order to participate in Native American

services. Because Thompson has alleged no injury from the testing

policy, he has no standing t o raise this claim. S ee Rivera v.

Wyeth-Ayerst Labs. , 283 F.3d 315, 318 (5th Cir. 2002).

Thompson next argues that the confiscation of his medicine bag

and dream cat cher violated his rights. Several of the cases he

cites involve the Religious Freedom Restoration Act (RFRA), which

has been declared unconstitutional as applied to the states. See

City of Boerne v. Flores , 521 U.S. 507, 536 (1997). However, the

reasoning applied in these cases may still be considered because

RLUIPA, which has taken the place of RFRA, applies a very similar

test.

At the time Thompson’s religious items were confiscated, his

travel card did not designate him as a Native American. Therefore,

Officer Schroedter confiscated his medicine bag and dream catcher.

Thompson has made no showing of anything more than negligence on

the part of any defendant with respect to his claims concerning hismedicine bag and dream catcher. Negligence does not suffice to

support a section 1983 claim. S ee Simmons v . McElveen , 846 F.2d

337, 339 (5th Cir. 1988). Summary judgment denying injunctive

relief respecting the claims concerning these items was proper.

Moreover, Schroedter was never served with process nor filed an

appearance and hence was not a party to the case.

Thomp son also argues that the federal RLUIPA and the Texas

Religious Freedom Act overruled the “penological interest” test set

forth in O’Lone v. Estate of Shabazz

, 482 U.S. 342 (1987), in favor

of the “least restrictive means” test. Yet, he argues, TDCJ

continues to restrict inmates, even those who are Native American,

from wearing long hair.

We have held that prison regulation s requiring prisoners to

cut their hair may withstand First Amendment free exercise claims.

Hicks v. Garner , 69 F.3d 22, 25 (5th Cir. 1995). Additionally,

even assuming that RLUIPA is constitutional, the RLUIPA standard is

nearly the same as that under RFRA, and we upheld TDCJ’s

regul ations regarding hair length under the RFRA standard. S ee

Diaz v. Collins , 114 F.3d 69, 73 (5th Cir. 1997).

However, Thompson also argues that his hair length was in fact

withi n the larger set of prison regulations. According to

Thompson, the Inmate Handbook and AD Manual both stipulate that an

inmate’s hair must be off the ears and n eck and kept in a neat,

trimmed manner, as his was. Despite this policy, he alleged that

defendant Assistant Warden Iglesias of the Stevenson Unit where1 We do not preclude the defendants from challenging the constitutionality of RLUIPA if

the district court addresses that statute on remand. Thompson is confined requires all inmates there to maintain hair

that is no more than one-eighth of an inch long. In these

circumstances, it would appear that this Stevenson Unit policy may

be invalid unless it is shown that a compelling government interest

requires the shaved, one-eighth inch hair length as opposed to a

neat, off the ear s and cuff haircut, because religious interests

are implicated. S ee 42 U.S.C. §2000cc-1(a) (2000). The

defendant’s motion for summary judgment does not address this claim

concerning the alleged special Stevenson Unit policy.

Because the district court did not address this claim, we

partially vacate the judgment and remand to the district court for

consideration of this issue. 1 We note that certain defendants,

such as Scott and Johnson, are apparently not proper defendants for

this claim, because it appears that the one-eighth inch hair length

policy may be specific to the prison in which Thompson is

incarcerated.

Thompson also argues that removal to federal court prejudiced

him and was dis criminatory. However, his complaint alleged that

the defendants had violated his federal First Amendment rights and

addressed federal case law. Thus, the removal was proper. S ee 28

U.S.C. § 1441(b).

Thompson argues that the defendants should have recognized his

right to assert the Texas Religious Freedom Act as a defense indisciplinary proceeding s. A federal court does not have

jurisdiction to enjoin the defendants based on state law. S ee

Earles v. State Bd. of Certified Pub. Accountants of La.

, 139 F.3d

1033, 1039 (5th Cir. 1998). The district court properly refused to

rule on the underlying merits of Thompson’s request for injunctive

relief under the Texas Religious Freedom Act.

Thompson also argues that the district court exh ibited bias

against him by assessing a $2.00 initial partial filing fee and a

balance of $103.00. The district court’s assessment was in accord

with the applicable statute, and consequently, Thompson has shown

no evidence of bias. S ee 28 U.S.C. § 1915(b). Moreover, under the

Prison Litigation Reform Act, if a prisoner brings a civil action

in forma pauperis , he must pay the full amount of the filing fee.

§ 804(a)(3).

The judgment of the district court is VACATED in so far as it

relates to Thompson’s RLUIPA claims concerning his hair length and

that portion of the case is REMANDED for further proceedings

consistent with this opinion; in all other respects the district

court’s judgment is AFFIRMED.

AFFIRMED in part; VACATED and REMANDED in part.