* 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should not be published and is not precedent except under the limited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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-41559

Summary Calendar

KENNETH L HILL

Plaintiff-Appellant

v.

BENJAMIN CRUZ, JR; ALBERT GARCIA

Defendants-Appellees

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 3:03-CV-222

Before KING, DAVIS and CLEMENT, Circuit Judges.

PER CURIAM:*

KennethL. Hill,Texas prisoner # 840441, appeals from the dismissal with

prejudice of his civil-rights lawsuit, filed pursuant to 42 U.S.C. § 1983, as

frivolous and for failure to state a claim. Hill argues that the district court erred

by granting summary judgment for the defendants as to his underlying claims

alleging violations of the First Amendment, the Religious Land Use and

Institutionalized Persons Act (RLUIPA), the Texas state constitution, and the

Texas Civil Practice and Remedies Code. Hill is an orthodox Muslim and his

United States Court of Appeals

Fifth Circuit

F I L E D

January 14, 2008

Charles R. Fulbruge III

Clerk
No. 06-41559

2

claims stem from TDCJ’s policy regarding the substitution of pork entrees with

other food items.

This court reviews de novo the district court’s grant of summary judgment.

Cousin v. Small, 325 F.3d 627, 637 (5th Cir. 2003). For the first time on appeal,

Hill alleges that the peanut butter served by the defendants contains pork byproduct and that the defendants violated his equal protection rights. Those

arguments will not be considered on appeal. See Stewart Glass & Mirror, Inc.

v. U.S. Auto Glass Disc. Ctrs., Inc., 200 F.3d 307, 316-17 (5th Cir. 2000).

Hill failed to show that the defendants’ challenged actions violated the

Establishment Clause or the Free Exercise Clause of the First Amendment.

See Baranowski v. Hart, 486 F.3d 112, 122 (5th Cir. 2007), cert. denied, 2007 WL

2230954 (U.S. Dec. 3, 2007) (No. 07-137); Van Orden v. Perry, 351 F.3d 173, 177

(5th Cir. 2003). Based on the uncontroverted summary judgment evidence, Hill’s

RLUIPA claim failed because he did not show that the defendants imposed a

substantial burden on the exercise of his religion. Adkins v. Kaspar, 393 F.3d

559, 567 (5th Cir. 2004). Even if he had shown a substantial burden, Hill’s

RLUIPA claim would failed because the challenged TDCJ policy would pass the

compelling interest test. See Baranowski, 486 F.3d at 125-26. Moreover,

because the district court dismissed Hill’s federal claims, Hill’s state law claims

were also properly dismissed. See Wong v. Stripling, 881 F.2d 200, 203-04 (5th

Cir. 1989).

Hill also contends that the district court did not view his response to the

defendants’s motion for summary judgment and erred by failing to allow him to

amend his complaint sua sponte prior to the dismissal. The district court

explicitly noted that Hill had filed a response to the defendants’ summary

judgment motion. Moreover, the district court did not abuse its discretion by

failing to allow Hill to amend his complaint at that stage of the proceedings. See

Freeman v. Continental Gin Co., 381 F.2d 459, 468-69 (5th Cir. 1967).

Accordingly, the district court’s judgment is AFFIRMED.