IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-20229

Summary Calendar

ERIC DEMOND LOZANO,

Plaintiff−Appellant,

versus

LORIE DAVIS, Director, 

Texas Department of Criminal Justice, Correctional Institutions Division,

Defendant−Appellee.

Appeal from the United States District Court

for the Southern District of Texas

No. 4:16-CV-2507

Before DAVIS, SMITH, and DUNCAN, Circuit Judges.

PER CURIAM:*

Eric Lozano, Texas prisoner #1915276, appeals a summary judgment on 

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

August 9, 2019

Lyle W. Cayce

Clerk

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No. 18-20229

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his claimed violations of the Religious Land Use and Institutionalized Persons 

Act (“RLUIPA”) and his constitutional rights to the free exercise of religion and 

to equal protection. Lozano contends that the defendant director discriminated 

against him and substantially burdened the free exercise of his Islamic faith 

by denying him free halal meals while simultaneously providing free kosher 

meals for Jewish inmates.

Lozano’s free exercise claim fails. We 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 also agree with the district court that Lozano failed to present evidence that he was treated differently from similarly situated inmates. See id.

at 123 & n.6. Further, Lozano’s conclusional assertion that he was treated 

differently on account of the defendant’s discriminatory intent is insufficient 

to show a genuine material factual dispute, “so summary judgment in favor of 

the defendant[] was proper” on this claim. Sossamon v. Lone Star State of 

Texas, 560 F.3d 316, 336 (5th Cir. 2009).

With respect to Lozano’s RLUIPA claim, the district court concluded that 

Lozano failed to demonstrate a substantial burden on his religious exercise

because he had been transferred to the Stringfellow Unit, where he has access 

to free kosher meals. Because Lozano’s assertions were not declared under 

penalty of perjury, the court declined to consider Lozano’s factual assertions in 

opposition to summary judgment (including that kosher meals do not meet his 

religious needs as a member of the Hanafi school of Sunni Islam).

The district court should have first considered whether, under the 2010 

amendments to Federal Rule of Civil Procedure 56, Lozano’s unsworn assertions could have been presented in an admissible form. See Lee v. Offshore 

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Logistical & Transp., L.L.C., 859 F.3d 353, 354−55 (5th Cir. 2017). Such a 

consideration is particularly relevant where a pro se plaintiff’s allegations form 

his entire response in opposition to summary judgment. See Davis v. Hernandez, 798 F.3d 290, 294−96 (5th Cir. 2015). 

Lozano appeals the denial of his motion for appointment of counsel. In 

determining that Lozano had not presented exceptional circumstances, the district court did not abuse its “considerable discretion” by denying counsel. 

Naranjo v. Thompson, 809 F.3d 793, 801 (5th Cir. 2015) (internal quotation 

marks and citation omitted). Moreover, Lozano has adequately presented his 

arguments on appeal, and we agree that his case presents no exceptional circumstances. Therefore, the denial of counsel is AFFIRMED, and Lozano’s 

motion for counsel on appeal is DENIED. See Cooper v. Sheriff, Lubbock Cty., 

Tex., 929 F.2d 1078, 1084 (5th Cir. 1991).

In light of the foregoing, the summary judgment on the constitutional 

claims is AFFIRMED. We VACATE and REMAND the RLUIPA claim for consideration of the summary judgment evidence under current Rule 56, including 

whether Lozano’s unsworn assertions can be presented in an admissible form. 

We express no view on what matters the district court can address on remand 

or on the ultimate merits of any issue not decided in this opinion. 

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