IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-60451

Summary Calendar

RAYMOND V. GUTIERREZ,

Plaintiff−Appellant,

versus

CORRECTIONS CORPORATION OF AMERICA,

Defendant−Appellee.

Appeal from the United States District Court

for the Northern District of Mississippi

USDC No. 3:13-CV-98

Before JOLLY, SMITH, and CLEMENT, Circuit Judges.

PER CURIAM:*

Raymond Gutierrez, California prisoner # F-12264, appeals the 

* 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

April 3, 2014

Lyle W. Cayce

Clerk

 

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dismissal of his 42 U.S.C. § 1983 action against Corrections Corporation of 

America (“CCA”) as frivolous and for failure to state a claim under 28 U.S.C. 

§ 1915(e)(2)(B). He also moves for appointment of counsel; that motion is 

DENIED. 

Gutierrez is confined in a CCA facility in Mississippi. His action arose 

from the denial of his request for Catholic-oriented television programming

from the Eternal Word Television Network (“EWTN”) in light of the broadcast 

of non-denominational programming from the Trinity Broadcasting Network 

(“TBN”), which Gutierrez characterizes as Protestant-oriented. 

Gutierrez contends that the district court erred by denying his postjudgment motion to amend the complaint. He avers that he stated his Equal 

Protection Clause claim in the motion to amend sufficiently for that claim to 

proceed. He lists other claims that he also put into his motion to amend, but 

he fails to brief those claims or to address whether the district court erred by 

declining to allow him to amend the complaint to add them. See Yohey v. 

Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). The district court did not abuse 

its discretion by denying Gutierrez’s postjudgment motion to amend the complaint to elaborate on the Equal Protection Clause argument that already had 

been raised and decided. See Briddle v. Scott, 63 F.3d 364, 379 (5th Cir. 1995).

Gutierrez claims he was deprived of equal protection of the law because 

CCA does not provide EWTN programming for Catholic prisoners but provides 

TBN programming for Protestant prisoners. He notes that an Arizona district 

court found that a similar claim he raised while incarcerated in a CCA facility 

there stated a violation sufficient to require a response before that case was 

dismissed for failure to exhaust administrative remedies. 

A complaint is frivolous if it lacks “an arguable basis in law or fact,” and 

dismissal on that ground is reviewed for abuse of discretion. Berry v. Brady,

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192 F.3d 504, 507 (5th Cir. 1999). Dismissal for failure to state a claim is 

reviewed de novo, applying the standard used to review a dismissal under Rule 

12(b)(6) of the Federal Rules of Civil Procedure. Hart v. Hairston, 343 F.3d 

762, 763–64 (5th Cir. 2003). “To survive a motion to dismiss, a complaint must 

contain sufficient factual matter, accepted as true, to state a claim to relief that 

is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal 

quotation marks and citation omitted). “Factual allegations must be enough 

to raise a right to relief above the speculative level, on the assumption that all 

the allegations in the complaint are true (even if doubtful in fact).” Bell Atl. 

Corp. v. Twombly, 550 U.S. 544, 555 (2007). Because the district court dismissed the complaint both as frivolous and for failure to state a claim, the dismissal is reviewed de novo. See Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir.

2005).

To establish a claim under the Equal Protection Clause, Gutierrez “must 

allege and prove that he received treatment different from that received by 

similarly situated individuals and that the unequal treatment stemmed from 

a discriminatory intent.” Taylor v. Johnson, 257 F.3d 470, 473 (5th Cir. 2001). 

The Clause does not require “that every religious sect or group within a 

prison―however few in numbers―must have identical facilities or personnel”; 

it requires only that prison officials afford inmates “reasonable opportunities 

. . . to exercise the religious freedom guaranteed by the First and Fourteenth 

Amendment[s].” Baranowski v. Hart, 486 F.3d 112, 123 (5th Cir. 2007) (internal quotation marks and citation omitted).

Gutierrez does not allege any discriminatory intent on the part of CCA. 

A document attached to his complaint indicated that the Religious Review 

Committee (“RRC”) reporting to the California Department of Corrections 

indicated that TBN is a “non-denominational channel” carrying programming 

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from various denominations. It is not evident from the record whether any 

specifically Catholic programming is carried on the channel or whether the 

teachings on the channel could be considered consistent with Catholic doctrines and practices, and CCA’s prisons presumably house a fair number of 

Catholic prisoners. However, the RRC determined that it was not feasible to 

provide each religious denomination with a specific television channel. If CCA 

were required to provide every prisoner of a particular faith with access to a

religion-specific television channel because TBN is broadcast into CCA facilities, that might “spawn a cottage industry of litigation and could have a negative impact on prison staff, inmates, and prison resources.” Id. at 122 (internal 

quotation marks and citation omitted). Moreover, Gutierrez has made no allegation suggesting that Catholic prisoners are not able to attend Mass or engage 

in the sacraments, study the Bible and other teachings, or otherwise exercise 

their right to practice their religion. See id. at 123. Additionally, Gutierrez 

has no constitutionally protected right to watch television. Montana v. 

Comm’ns Court, 659 F.2d 19, 23 (5th Cir. Unit A Sept. 1981) (per curiam).

Gutierrez’s allegations suggest at most that Catholic prisoners have less 

access to television programming specific to their faith than do Protestant prisoners. Gutierrez has failed to state a plausible claim of a violation of the Equal 

Protection Clause. See Iqbal, 556 U.S. at 678. Additionally, the Arizona district court’s finding that Gutierrez’s equal protection claim was sufficient to 

warrant a response was not relevant to the ultimate dismissal of that complaint, see Gutierrez v. Corr. Corp. of Am., No. 2:10-CV-00117, 2011 WL 

2836705 (D. Ariz. July 18, 2011), is not precedential in this circuit, see 

Orellana-Monson v. Holder, 685 F.3d 511, 520 (5th Cir. 2012), and is not 

persuasive in light of this court’s jurisprudence addressing the Equal Protection Clause, dismissal for failure to state a claim, and dismissal as frivolous. 

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The district court did not err by dismissing Gutierrez’s complaint as frivolous 

and for failure to state a claim. See Geiger, 404 F.3d at 373.

The appeal is DISMISSED as frivolous. See 5TH CIR. R. 42.2. The dismissal of the § 1983 action and the dismissal of this appeal both count as a 

strike for purposes of 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 

383, 388 (5th Cir. 1996). Gutierrez is cautioned that, if he accumulates three 

such strikes, he will no longer be allowed to proceed IFP in any civil action or 

appeal filed while he is incarcerated or detained in any facility unless he “is 

under imminent danger of serious physical injury.” § 1915(g).

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