Domingo Robledo v. Brad Livingston

Case: 13-10307 Document: 00512595016 Page: 1 Date Filed: 04/14/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 13-10307 April 14, 2014
Summary Calendar
Lyle W. Cayce
Clerk
DOMINGO ROBLEDO,
Plaintiff-Appellant
v.
BRAD LIVINGSTON, Executive Director, Texas Department of Criminal
Justice; RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION; BILL PIERCE,
Director of Chaplaincy, Texas Department of Criminal Justice, Correctional
Institutions Division; WALLACE NELSON, Regional Chaplain, Texas
Department of Criminal Justice Region VI; GILBERT CAMPUZANO, Regional
Chaplain, Texas Department of Criminal Justice Region VI; LINDA RICHEY,
Regional Assistant, Region VI; B. ARMSTRONG, Assistant Regional Director,
Region VI; ARCHIE SCARBOROUGH, Robertson Unit, Chaplain; EDWARD
L. WHEELER, Senior Warden; RONALD P. WILLIAMS, Captain of Security;
RICHARD G. LEAL, Assistant Warden; JIMMY O. BETCHER, Assistant
Warden,
Defendants-Appellees
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 1:12-CV-61
Case: 13-10307 Document: 00512595016 Page: 2 Date Filed: 04/14/2014
No. 13-10307
Before JONES, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM: *
Domingo Robledo, Texas prisoner # 561997, seeks leave to proceed in
forma pauperis (IFP) to appeal the dismissal of his civil rights complaint. By
moving for leave to proceed IFP, Robledo is challenging the district court’s
certification that his appeal is not taken in good faith. See Baugh v. Taylor,
117 F.3d 197, 202 (5th Cir. 1997); 28 U.S.C. § 1915(a)(3); FED. R. APP. P. 24(a).
Robledo does not address the district court’s dismissal of his claims alleging
the deprivation of the free exercise of religion and retaliation, the dismissal of
his claim regarding the application of the prison fire safety code, or the
dismissal of his claims for monetary damages against the defendants in their
official capacities. Because Robledo has not briefed these issues, they are
deemed abandoned. See Brinkmann v. Dallas Cnty. Deputy Sheriff Abner, 813
F.2d 744, 748 (5th Cir. 1987).
Robledo argues that the district court abused its discretion in dismissing
as frivolous his claim that he was deprived of participating in weekly Christian
worship services for months in violation of the Religious Land Use and
Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc, and he further
challenges the district court’s dismissal of his claim arising under the Texas
Religious Freedom Restoration Act (TRFRA). Based on the facts as alleged by
Robledo in his complaint and at the Spears 1 hearing, Robledo’s RLUIPA claim
is not based upon an indisputably meritless legal theory, and his factual
contentions are not clearly baseless. See Neitzke v. Williams, 490 U.S. 319, 327
(1989); see also Mayfield v. Texas Department of Criminal Justice, 529 F.3d
* 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.
1 Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).
2
Case: 13-10307 Document: 00512595016 Page: 3 Date Filed: 04/14/2014
No. 13-10307
599, 614-17 (5th Cir. 2008). The “appeal involves legal points arguable on their
merits (and therefore not frivolous).” Howard v. King, 707 F.2d 215, 220 (5th
Cir. 1983) (internal quotation marks and citation omitted). Further, Robledo
has demonstrated that he is financially eligible to proceed IFP. See Carson v.
Polley, 689 F.2d 562, 586 (5th Cir. 1982). Therefore, Robledo’s motion for leave
to proceed IFP is granted. See Baugh, 117 F.3d at 202. His motion to file a
supplemental brief in support of his IFP motion also is granted. We dispense
with further briefing.
Thus, we vacate in part the district court’s dismissal as frivolous of
Robledo’s RLUIPA claim and remand for further proceedings. The district
court’s decision declining to exercise supplemental jurisdiction over Robledo’s
TRFRA claim rested in part on the erroneous conclusion that Robledo’s
RLUIPA claim was frivolous; therefore we vacate the district court’s ruling on
this issue and remand for further proceedings. We express no view on how the
district court should rule on remand. To the extent that the district court’s
judgment dismissed Robledo’s official-capacity claims for damages as barred
by the Eleventh Amendment and dismissed as frivolous his free exercise of
religion claim, his retaliation claim, and his claim concerning the application
of the fire safety code, we affirm.
IFP GRANTED; MOTION TO FILE SUPPLEMENTAL BRIEF
GRANTED; AFFIRMED IN PART, VACATED IN PART, AND REMANDED.
3