### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-10441 Summary Calendar

DOMINGO ROBLEDO, Plaintiff-Appellant

v. RICHARD G. LEAL, Assistant Warde n ; R I CHARD D. DANIEL, Captain; TIMOTHY HOOPER, C a p t ain of Security; CHARLES S. HENDRIX, Lieutenant of Security; SUSAN WILBURN, Assistant Regional Director; EDWAR D L. WHEELER, Senior Warden, Defendants-Appellees

Appeal from the United States District Court f or the Northern District of Texas USDC No. 1:11-CV-77

Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges. PER CURIAM: * D o m i n go R ob l e d o , T e x a s prisoner # 561997, appeals the magistrate j u d g e ’ s dismissal of his civil rights complaint as frivolous. The complaint alleged that he w as subjected to strip searches in violation of the F irst, Fourth, Eighth, and Fourteenth Amendments; the Religious Land Use and Ins t i t u t i o n al i z e d P e r son’s Act (“RLUIPA”), 42 U.S.C. § 2000cc; and the Texas Religious F r e edom U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D June 21, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R

. 47. 5, the court has d eterm ined that this op inion should not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 12-10441 Document: 00512283559 Page: 1 Date Filed: 06/21/2013No. 12-10441

Restoration Act (“TRFRA”). R obledo’s m otion seeking to f ile a n out-of-time reply brief is GRANTED. We review the magistrate judge’s dismissal of the complaint as f rivolous for an abuse of discretion. Norton v. Dimazana , 122 F.3d 2 86, 291 (5t h C ir. 1997). A complaint is frivolous and lacks an arguable basis in law if it is based
upon an indisputably meritless legal theory. Neitzke v. W illiams , 490 U.S. 319, 327 (1989). A complaint is factua l l y f r i v o lous if the “factual contentions are clearly baseless.” Id. On appeal, R obledo challenges the magistrate judge’s: ( 1 ) d ismissal as frivolous of his c laims alleging that strip s earches conducted following Christian

wors h i p s e r v i ces i n the prison chapel violated the RLUIPA and the Fourth Amendment and were retaliatory; (2) denial of his motion seeking a p reliminary injunction; (3) decision declining to exercise jurisdiction over his p endent state law claims under the TRFRA; and ( 4 ) i m p o s ition of a strike p ursuant to 28 U.S.C. § 1915(g), in d ismissing his c omplaint. In Robledo’s statement of issues in his appellate brief, he lists the magistrate judge’s d e nial of h is motion for the appointment of counsel as a n i ssue for a ppeal, but he has failed to brief the issue, abandoning it for t he purposes of appeal. See Brinkmann v. Dallas Cnty. Deputy Sheriff Abner , 813 F.2d 744, 748 (5th C ir. 1987). Altho u g h R o b ledo states that he alleged in the district court that A dministrative Directive 03.22

was di sparately 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 j udge’s determina t ion that his allegations regarding the removal of chairs f r o m t h e chapel and regarding lim i t a t i o n s on t he number o f inmates permitted to a ttend worship services failed to demonstrate that he was deprived of a constitutional right. He therefore has abandoned any challenge to these i ssues on appeal. See Brinkmann , 813 F.2d at 748.
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Based o n the facts as alleged by R obledo in his c omplaint and at the Spears 1 h earing, Robledo’s RLUIPA, Fourth Amendment, and retaliation claims

are not based upon a n indisputably meritless legal theory, and his factual contentions are not c learly baseless. See Neitzke , 490 U.S. at 3 27. T herefore, the magistrate judge’s dismissal o f these c laims on the ground t hat the claims were frivolous was an abuse of discretion. See Norton , 12 2 F

. 3d at 291. Thus, we VACATE the magistrate j u d g e ’ 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 c l aims and the decision denying injunctive relief rested on the erroneous conclusi o n t h a t Robledo’s claims were frivolous ; therefore the m agistrate judge’s rulings on those issues

are a l so VACATED and we REMAND for further proceedings. W e express no view on how the magistrate judge should rule on remand. F i nally, we also REVERSE t h e m a gistrate judge’s d ecision to impose a strike against Robledo. See Adepegba v. Hammons , 103 F.3d 383, 387 (5th Cir. 1996).

AFFIRMED IN PART, VACATE D I N PART, AND REMANDED; IMPOSITION OF STRIKE REVERSED; MOTION TO FILE OUT-OF-T I M E REPLY BRIEF GRANTED.

1 Sp ea rs v . M

cCotter , 766 F

. 2d 179 ( 5th Cir. 1985)

.

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