Lowery v. Gonzales ( 2023 )

Case: 23-10366 Document: 00516991703 Page: 1 Date Filed: 12/06/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 23-10366
Summary Calendar FILED
____________ December 6, 2023
Lyle W. Cayce
Michael Logan Lowery, Clerk
Plaintiff—Appellant,
versus
Adam R. Gonzales; Joe Tovar; Amy A. Garcia; Bobby
Lumpkin, Director, Texas Department of Criminal Justice, Correctional
Institutions Division,
Defendants—Appellees.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 2:22-CV-16
______________________________
Before King, Haynes, and Graves, Circuit Judges.
Per Curiam: *
Michael Logan Lowery, Texas prisoner # 1954001, filed a pro se civil
suit alleging violations of the Religious Land Use and Institutionalized
Persons Act (RLUIPA), the Texas Religious Freedom and Restoration Act
(TRFRA), and the right of equal protection. After the case was removed
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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No. 23-10366
from state court, the district court granted the defendants’ motion to dismiss
pursuant to Federal Rule of Civil Procedure 12(c). Lowery now appeals.
Because “even a pro se appellant cannot raise new theories for relief
for the first time on appeal,” we decline to address claims in Lowery’s brief
that he failed to present to the district court. Collins v. Dallas Leadership
Found., 77 F.4th 327, 330 n.2 (5th Cir. 2023). His pending motions, which
rely on those claims and related allegations, are DENIED.
This court reviews Rule 12(c) dismissals de novo, applying the same
standard used for deciding motions to dismiss pursuant to Federal Rule of
Civil Procedure 12(b)(6). Q Clothier New Orleans, L.L.C. v. Twin City Fire
Ins. Co., 29 F.4th 252, 256 (5th Cir. 2022). A plaintiff avoids dismissal by
“plead[ing] sufficient facts to state a claim to relief that is plausible on its
face.” Gentilello v. Rege, 627 F.3d 540, 544 (5th Cir. 2010) (internal quotation
marks and citation omitted).
Both RLUIPA and TRFRA protect religious exercise, and “[c]laims
under TRFRA may be resolved by consideration of case law applying
RLUIPA[.]” McFaul v. Valenzuela, 684 F.3d 564, 576 (5th Cir. 2012); see 42
U.S.C. § 2000cc-1(a); Tex. Civ. Prac. & Rem. Code § 110.003(a)-(b).
Lowery avers that racial segregation is an aspect of his religious beliefs and
complains of being housed with non-white inmates. The district court found
these allegations insufficient to plead “the existence of a substantial
interference with a religious exercise,” which is required to support a
RLUIPA claim. Baranowski v. Hart, 486 F.3d 112, 124 (5th Cir. 2007). As
Lowery shows no error in that determination, we conclude his statutory
claims were properly dismissed. See id.; McFaul, 684 F.3d at 576.
The elements of an equal protection claim are that the plaintiff was
treated differently than similarly situated individuals and the unequal
treatment stemmed from a discriminatory intent. Fennell v. Marion Indep.
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No. 23-10366
Sch. Dist., 804 F.3d 398, 412 (5th Cir. 2015). As the district court observed,
Lowery alleges only that different groups have received different treatment;
he does not plead facts that show or suggest this disparate treatment was the
result of a discriminatory intent. This claim accordingly fails as well. See id.Lowery also maintains that the district court erred by not allowing him
to submit evidence before dismissing his claims, but in doing so ignores the
fact that the court was authorized to grant judgment on the pleadings. See
Fed. R. Civ. P. 12(c). Even assuming Lowery has not abandoned this issue
through inadequate briefing, see Yohey v. Collins, 985 F.2d 222, 224-25 (5th
Cir. 1993), his argument is unavailing.
For these reasons, we AFFIRM the judgment of the district court.
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