Longoria v. Dretke

Decision Date09 November 2007
Docket NumberNo. 06-10676.,06-10676.
Citation507 F.3d 898
PartiesJuan LONGORIA, Plaintiff-Appellant, v. Doug DRETKE, Director, Texas Department of Criminal Justice, Correctional Institutions Division; James Duke, Warden, Defendants-Appellees.
CourtU.S. Court of Appeals — Fifth Circuit

Juan Longoria, Abilene, TX, pro se.

Appeal from the United States District Court for the Northern District of Texas.

Before KING, BARKSDALE and DENNIS, Circuit Judges.

PER CURIAM:

Juan Leonel Longoria, Texas prisoner # 711468, filed this pro se action against the Director of the Texas Department of Criminal Justice-Institutional Division (TDCJ-ID) and the Warden of the Robertson Unit, claiming his right to exercise his religion was denied when they denied him permission to grow his hair. Primarily at issue is whether, without requiring defendants to answer, the district court erred in dismissing Longoria's claim under the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. §§ 2000cc et seq. AFFIRMED.

I.

The following facts were developed at the hearing for Longoria pursuant to Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985). He is of Mexican and Native American descent. He has resided in the Robertson Unit since May 1999 and is classified as a member of a security threat group (STG) called the Mexican Mafia, which he alleges he joined because of its members' interest in spirituality. Due to his STG status, Longoria cannot be housed with other Native American inmates. In May 2004, he requested permission to grow his hair because his great spirit told him not to mutilate his hair.

In January 2005, Longoria told prison officials, that, due to his religious beliefs, he would not cut his hair. In response to his grievance, Longoria was informed that the Chaplaincy Department could not authorize him an exemption to the grooming policy. According to Longoria, he was disciplined for violating the grooming policy, by which all inmates in the Robertson Unit are required to abide.

The district court granted Longoria leave to proceed in forma pauperis, and a magistrate judge conducted the Spears hearing. Without requiring defendants to answer, the district court dismissed Longoria's claim as frivolous and for failure to state a claim, citing 28 U.S.C. §§ 1915 (governing proceedings in forma pauperis), 1915A (governing screening of prisoner complaints against governmental entities), and 42 U.S.C. § 1997e(c) (governing dismissal of frivolous actions by prisoners). The district court granted Longoria permission to proceed in forma pauperis on appeal, which he pursues pro se.

II.

The dismissal of a complaint as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) is reviewed for abuse of discretion. E.g., Harper v. Showers, 174 F.3d 716, 718 & n. 3 (5th Cir.1999) (citations omitted). On the other hand, dismissals under 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A, and 42 U.S.C. 1997e(c)(1) are reviewed de novo. See Ruiz v. United States, 160 F.3d 273, 275 (5th Cir.1998); Black v. Warren, 134 F.3d 732, 733-34 (5th Cir.1998). Because the district court referred to all of these statutes in dismissing Longoria's action, the issues at hand are reviewed de novo. See Velasquez v. Woods, 329 F.3d 420, 421 (5th Cir.2003).

A.

Longoria fails to contend defendants violated his rights under the Free Exercise Clause of the First Amendment. His brief provides only cursory reference to the First Amendment in the "Statement of Subject Matter Jurisdiction" and in the "Statement of the Proceedings", and these references merely refer to what he alleged in district court.

Although we liberally construe pro se briefs, such litigants must still brief contentions in order to preserve them. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir.1993). This court "will not raise and discuss legal issues that [Longoria] has failed to assert". Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir.1987) (citations omitted). Therefore, Longoria has abandoned any First Amendment claim. (In any event, our court has held the grooming policy challenged by Longoria not violative of the Free Exercise Clause. See Green v. Polunsky, 229 F.3d 486, 489-91 (5th Cir.2000) (applying Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987)); see also Taylor v. Johnson, 257 F.3d 470, 472 (5th Cir.2001) (per curiam).)

B.

As noted, Longoria maintains the district court erred in dismissing his claims under the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc-1(a). RLUIPA is not cited in Longoria's prisoner form complaint, which alleged a general violation of his "freedom to exercise [his] religious tenets in conformity with [his] religion" and his "right to practice [his] religion as a Mexica Nahua Native American". Complicating matters, the recording for Longoria's Spears hearing is inaudible. Such hearings are conducted "to supplement the questionnaires sent to prisoners to elaborate on often less than artfully-drafted pleadings" and are akin to a FED. R. CIV. P. 12(e) motion for a more definite statement. Wilson v. Barrientos, 926 F.2d 480, 482 (5th Cir.1991). Because the district court addressed claims by Longoria under RLUIPA in its order dismissing this action, we assume sufficient information was provided at the Spears hearing to constitute a RLUIPA claim's being made. See Longoria v. Dretke, No. 1:05-CV-161 (N.D. Tex. 3 May 2006).

Our court has not addressed whether the TDCJ-ID's grooming policy violates RLUIPA. See Thunderhorse v. Pierce, 232 Fed.Appx. 425 (5th Cir.2007) (per curiam) (unpublished) (vacating summary judgment without reaching merits because plaintiff not given notice and opportunity to respond to defendants' motion); Thompson v. Scott, 86 Fed.Appx. 17 (5th Cir.2004) (per curiam) (unpublished) (vacating and remanding because plaintiff alleged his hair was within length allowed by policy). On the other hand, our court addressed the same grooming policy under the Religious Freedom Restoration Act (RFRA), RLUIPA's predecessor. Diaz v. Collins, 114 F.3d 69 (5th Cir.1997). Because the test under the RLUIPA is sufficiently the same as that previously imposed under RFRA, we hold TDCJ-ID did not violate Longoria's rights by, pursuant to the grooming policy, denying him permission to grow his hair.

1.

The impetus for RFRA lies in Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990). Smith involved a challenge, based on the Free Exercise Clause, to an Oregon law banning the use of peyote, with no exception for spiritual use of the substance. The Court held the Free Exercise Clause was not violated by neutral, generally applicable laws that incidentally burdened religion, absent the conjunction with another constitutional right. Id. at 881, 110 S.Ct. 1595. The Court declined to apply the previous strict-scrutiny test enunciated by Justice Brennan in Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963), which required a plaintiff to show the law in question substantially burdened his religion; and, if such a burden existed, the law was valid only if it served a compelling state interest outweighing the degree to which the plaintiff's free-exercise rights were affected. Id. at 403-09, 83 S.Ct. 1790.

In response to Smith, Congress enacted RFRA in 1993, which restored the Sherbert balancing test. Our court, in Diaz, 114 F.3d at 73, held the TDCJ-ID's grooming policy (as noted, the same policy at issue here) did not violate RFRA because it was related to security, it involved a compelling state interest, and the security interest at stake could not meaningfully be achieved by any different or lesser means. In so holding, our court noted: "[I]n enacting the RFRA, Congress intended to continue to extend substantial deference to prison officials in legitimate security matters". Id.

The Supreme Court, however, struck down RFRA in City of Boerne v. Flores, 521 U.S. 507, 532-36, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997), holding: in enacting RFRA, Congress had exceeded its powers under section 5 of the Fourteenth Amendment. Congress responded by enacting RLUIPA, which is fundamentally the same as RFRA. To avoid the constitutional defect found in City of Boerne, however, RLUIPA's scope is limited to laws and regulations concerning land use and institutionalized persons. See Adkins v. Kaspar, 393 F.3d 559, 567 (5th Cir.2004).

Cutter v. Wilkinson, 544 U.S. 709, 720, 125 S.Ct. 2113, 161 L.Ed.2d 1020 (2005), examined, and unanimously upheld, the constitutionality of RLUIPA as a permissive accommodation of religion not barred by the Establishment Clause. In so holding, the Court noted: "Congress carried over from RFRA the `compelling governmental interest'/`least restrictive means' standard". Id. at 717, 125 S.Ct. 2113 (citing 146 Cong. Rec. S7774 (July 27, 2000) (joint statement of Sen. Hatch and Sen. Kennedy on RLUIPA)). The Court also held, however, that "courts entertaining complaints under [the below-quoted section] 3 would accord `due deference to the experience and expertise of prison and jail administrators'". Id. (quoting 146 Cong. Rec. S7775 (July 27, 2000)). RLUIPA, the Court held, does not "elevate accommodation of religious observances over an institution's need to maintain order and safety". Id. at 722, 125 S.Ct. 2113.

RLUIPA § 3(a), the relevant provision here, provides:

No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution . . . even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person—

(1) is in furtherance of a compelling governmental interest; and

(2) is the least restrictive means of furthering that compelling governmental interest.

42 U.S.C. § 2000cc-1(a). As discussed, § 3(a) implements nearly the same strict-scrutiny standard previously applied under R...

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