IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-10441

Summary Calendar

DOMINGO ROBLEDO,

Plaintiff-Appellant

v.

RICHARD G. LEAL, Assistant Warden; RICHARD D. DANIEL, Captain;

TIMOTHY HOOPER, Captain of Security; CHARLES S. HENDRIX, Lieutenant

of Security; SUSAN WILBURN, Assistant Regional Director; EDWARD L.

WHEELER, Senior Warden,

Defendants-Appellees

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 1:11-CV-77

Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Domingo Robledo,Texas prisoner # 561997, appeals the magistrate judge’s

dismissal of his civil rights complaint as frivolous. The complaint alleged that

he was subjected to strip searches in violation of the First, Fourth, Eighth, and

Fourteenth Amendments; the Religious Land Use and InstitutionalizedPerson’s

Act (“RLUIPA”), 42 U.S.C. § 2000cc; and the Texas Religious Freedom

United States Court of Appeals

Fifth Circuit

F I L E D

June 21, 2013

Lyle W. Cayce

Clerk

* 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.

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No. 12-10441

Restoration Act (“TRFRA”). Robledo’s motion seeking to file an out-of-time reply

brief is GRANTED. 

We review the magistrate judge’s dismissal of the complaint as frivolous

for an abuse of discretion. Norton v. Dimazana, 122 F.3d 286, 291 (5th Cir.

1997). A complaint is frivolous and lacks an arguable basis in law if it is based

upon an indisputably meritless legal theory. Neitzke v. Williams, 490 U.S. 319,

327 (1989). A complaint is factually frivolous if the “factual contentions are

clearly baseless.” Id.

On appeal, Robledo challenges the magistrate judge’s: (1) dismissal as

frivolous of his claims alleging that strip searches conducted following Christian

worship services in the prison chapel violated the RLUIPA and the Fourth

Amendment and were retaliatory; (2) denial of his motion seeking a preliminary

injunction; (3) decision declining to exercise jurisdiction over his pendent state

law claims under the TRFRA; and (4) imposition of a strike pursuant to 28

U.S.C. § 1915(g), in dismissing his complaint. In Robledo’s statement of issues

in his appellate brief, he lists the magistrate judge’s denial of his motion for the

appointment of counsel as an issue for appeal, but he has failed to brief the

issue, abandoning it for the purposes of appeal. See Brinkmann v. Dallas Cnty.

Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987). Although Robledo

states that he alleged in the district court that Administrative Directive 03.22

was disparately applied, Robledo does not challenge the magistrate judge’s

determination that a violation of prison policy, standing alone, is not a

constitutional violation. See Myers v. Klevenhagen, 97 F.3d 91, 94 (5th Cir.

1996). Robledo also does not challenge the magistrate judge’s determination

that his allegations regarding the removal of chairs from the chapel and

regarding limitations on the number of inmates permitted to attend worship

services failed to demonstrate that he was deprived of a constitutional right. He

therefore has abandoned any challenge to these issues on appeal. See

Brinkmann, 813 F.2d at 748. 

2

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No. 12-10441

Based on the facts as alleged by Robledo in his complaint and at the 

Spears1 hearing, Robledo’s RLUIPA, Fourth Amendment, and retaliation claims

are not based upon an indisputably meritless legal theory, and his factual

contentions are not clearly baseless. See Neitzke, 490 U.S. at 327. Therefore, the

magistrate judge’s dismissal of these claims on the ground that the claims were

frivolous was an abuse of discretion. See Norton, 122 F.3d at 291. Thus, we

VACATE the magistrate judge’s dismissal of these claims as frivolous and

REMAND for further proceedings. The magistrate judge’s decision declining to

exercise pendent jurisdiction over Robledo’s TRFRA claims and the decision

denying injunctive relief rested on the erroneous conclusion that Robledo’s

claims were frivolous; therefore the magistrate judge’s rulings on those issues

are also VACATED and we REMAND for further proceedings. We express no

view on how the magistrate judge should rule on remand. Finally, we also

REVERSE the magistrate judge’s decision to impose a strike against Robledo. 

See Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir. 1996). 

AFFIRMED IN PART, VACATED IN PART, AND REMANDED;

IMPOSITION OF STRIKE REVERSED; MOTION TO FILE OUT-OF-TIME

REPLY BRIEF GRANTED.

1 Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).

3

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