Case: 21-20010 Document: 00516403512 Page: 1 Date Filed: 07/22/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
July 22, 2022
No. 21-20010 Lyle W. Cayce
Clerk
Eric Demond Lozano,
Plaintiff—Appellant,
versus
Deborah L. Schubert, Kitchen Captain, Texas Department of Criminal
Justice; Robert D. Herrera, Head Warden, Texas Department of
Criminal Justice; Paul B. Wilder, Assistant Warden, Texas Department
of Criminal Justice; David E. Nichols, Chaplin, Texas Department of
Criminal Justice; Amy Oliver, Grievance Coordinator, Texas Department
of Criminal Justice,
Defendants—Appellees.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:18-CV-1183
Before Higginson, Willett, and Ho, Circuit Judges.
Stephen A. Higginson, Circuit Judge:
Eric Demond Lozano, Texas prisoner # 1915276, filed a civil rights
complaint under 42 U.S.C. § 1983 against various employees of the Texas
Department of Criminal Justice (TDCJ) who worked at the Wallace Pack
Unit, a state prison near Navasota, Texas. Lozano, who is Muslim, alleges
that when he was evacuated from the Stringfellow Unit (a state prison in
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Otey, Texas) to the Wallace Pack Unit due to Hurricane Harvey, he was not
provided with kosher meals, even though such meals were received by
similarly situated Jewish inmates. The district court granted the defendants’
motion for summary judgment. We REVERSE and REMAND.
I.
Lozano’s complaint alleges the following relevant facts. On August
26, 2017, Lozano and other Stringfellow Unit inmates were evacuated to the
Wallace Pack Unit due to Hurricane Harvey. Upon arrival, Lozano was
informed that the Wallace Pack Unit did not serve kosher food. However, he
subsequently learned that Jewish inmates who had been evacuated with him
were receiving kosher meals. When Lozano inquired about whether he could
be provided with kosher meals, explaining that he did not eat the regular
prison meals because of his religious beliefs and that kosher meals, which
satisfy the dietary precepts of his Islamic faith, had been served to him at the
Stringfellow Unit, the head warden of the Pack Unit, Robert Herrera,
allegedly asked him, “When do Muslims eat with Jews?” Herrera also
allegedly said, “We don’t do kosher here. You are on survival mode.” David
Nichols, a TDCJ chaplain, allegedly explained to Lozano, “I have a list of all
Jewish offenders and you are not on the list. . . . I can’t help you.” Deborah
Schubert, the kitchen captain, allegedly said, “Well you’re not on the Jewish
list, so I can’t help you.” Assistant Warden Paul Wilder allegedly told
Lozano, “Muslims don’t eat Jewish food. I can’t help you. . . . You should
have been a Jew.” Lozano suffered from physical and mental distress as a
result of his being unable to eat kosher meals, losing 14 pounds and
experiencing depression and suicidal ideation. He started receiving kosher
meals on September 21, 2017, after he was transferred to the Leblanc Unit.
The district court initially dismissed Lozano’s complaint with
prejudice. The court first determined that collateral estoppel barred Lozano
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from raising a claim under the First Amendment’s Free Exercise Clause. The
district court then found that “the kosher meals were donated by third parties
to the Jewish inmate evacuees,” and it accordingly concluded that Lozano
had failed to state a claim under the Fourteenth Amendment’s Equal
Protection Clause, reasoning that because the meals “were not directly
supplied or prepared by prison officials, plaintiff’s allegations raise no viable
equal protection claim.”
On appeal, we affirmed the dismissal of Lozano’s Free Exercise claim.
See Lozano v. Shubert, 770 F. App’x 687, 687-88 (5th Cir. 2019) (per curiam)
(unpublished). However, we vacated the district court’s dismissal of
Lozano’s Equal Protection claim, determining, based on “Lozano’s
allegations in his brief on appeal,” that “[i]t is possible that Lozano has pled
or could plead an Equal Protection claim.”
Id. at 688-89. We further stated
that “[e]ven if the allegations in Lozano’s complaint do not state a claim
under the Equal Protection Clause,” the district court improperly “denied
Lozano an ‘adequate opportunity to cure the inadequacies in his pleading’”
by dismissing his complaint with prejudice.
Id. at 689 (citation omitted).
The case was remanded to the district court on June 14, 2019. On June
20, Lozano filed a motion to amend his complaint. However, the district
court denied the motion as “moot” on June 21, for the stated reason that
“[n]o proposed amended complaint was submitted for the Court’s review.”
On August 13, Lozano filed a motion for the appointment of counsel, which
the district court denied without prejudice the following day.
On September 17, the defendants filed an answer to Lozano’s original
complaint. In his reply to the answer, which he filed on October 3, Lozano
reiterated the allegations that he had made in his original complaint and also
asserted several new allegations: that a temporary kosher kitchen was
established in the Wallace Pack Unit bakery during the evacuation; that the
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defendants had brought some kosher food from the Stringfellow Unit to the
Wallace Pack Unit; that the defendants denied him access to TDCJ-bought
foods that the Jewish inmates were able to eat; and that when he and the other
Stringfellow inmates were later transferred to the LeBlanc Unit, he was able
to eat the same privately-donated kosher food that he had been denied at the
Wallace Pack Unit. Lozano attached to his response declarations from two
Jewish inmates stating (1) that Lozano was denied access to non-donated
kosher foods while at the Wallace Pack Unit and (2) that at the LeBlanc Unit,
Lozano was able to eat the donated kosher food that he had been denied at
the Wallace Pack Unit.
On January 15, 2020, the defendants moved for summary judgment.
Assistant Warden Wilder submitted an affidavit in support of the motion, in
which he testified as follows:
On August 26, 2017, offenders housed at the Stringfellow unit
in Rosharon, Texas were evacuated to the Wallace Pack unit in
Navasota, Texas due to Hurricane Harvey. Since the
Stringfellow Unit is an enhanced Jewish-designated unit, many
of the evacuated offenders were Jewish and required Kosher
meals. The Wallace Pack unit does not have a Kosher kitchen
so originally the evacuated offenders did not receive Kosher
meals. Soon thereafter, Rabbi Goldstein and his affiliates
delivered pre-packaged Kosher meals that were donated.
These donated Kosher meals came with a list of Jewish
offenders who were to receive the meals.
I have the responsibility of making sure donated meals are not
averse to the TDCJ’s security concerns. When it comes to
approved donated meals the TDCJ treats the donated food as
belonging to the person or persons to whom the donation is
intended, and the TDCJ does not interfere in the receipt of the
donated food as long as it is deemed safe for receipt within the
unit. I did not create the list of offenders who would receive the
meals. We merely followed the instructions of Rabbi Goldstein
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concerning how the meals were to be stored, handled, and
distributed. Only offenders who were on the list provided by
Rabbi Goldstein could receive the donated Kosher meals. This
excluded offender Eric Lozano, any other evacuated offenders
not on the list, and any offender on the unit who identified as
Jewish. Prior to the evacuation, the Wallace Pack unit did not
have any Jewish offenders that required a Kosher diet. The
TDCJ meal plans provide meat-free and pork-free options to
all offenders that can and do meet many religious restrictions
concerning meat consumption. Ultimately, when the
Stringfellow offenders transferred out of the Wallace Pack unit
the donated Kosher meals did not remain at the Wallace Pack
unit.
Rabbi David Goldstein also submitted an affidavit in support of the
motion. Goldstein explained that he was “under contract with the [TDCJ]
to serve as the Department’s head rabbi,” and he testified as follows:
Due to the devastation in Texas caused by Hurricane Harvey,
the TDCJ inmates at the Stringfellow Unit in Rosharon, Texas
were evacuated to the Wallace Pack Unit in Navasota, Texas
on August 26, 2017. During the month of August, I was running
the distribution of donations for Chabad Harvey Relief in the
Houston area. I received donated pre-packaged Kosher meals
from organizations in Chabad Harvey relief to be donated only
to Jewish inmates affected by Hurricane Harvey. I did not
influence, have authority, or aid in the creation of making these
restrictions concerning the donated Kosher meals. On August
28, 2017, I brought these donated Kosher meals to the Wallace
Pack unit and provided a list of Jewish offenders that were
going to receive the meals. I created this list based off the
Jewish offenders at the Stringfellow unit who were evacuated
to the Wallace Pack unit due to Hurricane Harvey. I instructed
the Wallace Pack unit Warden, Assistant Warden, Kitchen
captain, and unit chaplain on how to handle, store, and
distribute the meals to keep them Kosher. The Pack unit does
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not have a Kosher kitchen, which is why these meals were being
donated for these evacuated Jewish offenders.
The district court granted the summary judgment motion. The court
noted that Lozano had never submitted an amended complaint, and it
explained that it could not consider any new allegations that Lozano had
presented in his response to the defendants’ motion for summary judgment. 1
The court then found, based the affidavits of Wilder and Goldstein, that “the
kosher meals were donated by third party donors and earmarked by the
donors for the Jewish inmate evacuees,” and it concluded, based on this
finding, that “no equal protection violation is shown.”
Lozano filed a motion for reconsideration, which the district court
construed as a motion to alter or amend the judgment under Federal Rule of
Civil Procedure 59(e) and denied. Lozano appealed.
II.
Lozano argues that the district court erred by not giving him an
opportunity to cure the inadequacies in his complaint. Given our court’s
prior remand, we agree.
When this case was previously before us, we vacated the district
court’s dismissal with prejudice of Lozano’s Equal Protection claim. We
explained that, given “Lozano’s allegations in his brief on appeal,” “[i]t is
possible that Lozano has pled or could plead an Equal Protection claim.”
Lozano, 770 F. App’x at 688. Significantly, we stated that “[e]ven if the
allegations in Lozano’s complaint do not state a claim under the Equal
Protection Clause,” the district court improperly “denied Lozano an
‘adequate opportunity to cure the inadequacies in his pleading’” because it
1
The court did not address whether it could consider the new allegations that
Lozano had presented in his reply to the defendants’ original answer.
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“did not notify Lozano before it dismissed his claim with prejudice.” Id. at
689 (citation omitted). We highlighted that Lozano “was not given notice
and an opportunity to amend his complaint, he was not given a questionnaire,
and he was not afforded a S[p]ears hearing.” Id. 2 We explained that “with
the benefit of more specific allegations, Lozano may be able to state a claim
against one or more of the defendants for violating his right to equal
protection.” Id. (cleaned up).
In short, because we concluded that Lozano may have a plausible
claim that his constitutional rights had been violated, we instructed the
district court to make sure that, on remand, Lozano had an “adequate
opportunity to cure the inadequacies in his pleading,” despite his status as a
pro se litigant. Id.; cf. Murrell v. Bennett, 615 F.2d 306, 311 (5th Cir. 1980)
(“[W]e must always guard against premature truncation of legitimate
lawsuits merely because of unskilled presentations.”); United States v.
Riascos,
76 F.3d 93, 94 (5th Cir. 1996) (“To penalize Riascos for less-thanperfect pleading is a clear violation of the rule that courts must liberally
construe pro se pleadings.”).
“[A] lower court on remand must implement both the letter and the
spirit of the appellate court’s mandate and may not disregard the explicit
directives of that court.” Demahy v. Schwarz Pharma, Inc., 702 F.3d 177, 184
(5th Cir. 2012). However, after we remanded the case to the district court,
Lozano did not receive either a Spears hearing 3 or a questionnaire, and, when
Lozano moved to amend his complaint, the district court denied the motion,
2
See also Alderson v. Concordia Par. Corr. Facility, 848 F.3d 415, 423 (5th Cir. 2017)
(“The principal vehicles which have evolved for remedying inadequacy in prisoner
pleadings are the Spears hearing and a questionnaire to bring into focus the factual and legal
bases of prisoners’ claims.”)
3
See Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).
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stating in full, “Plaintiff’s letter requesting leave to amend his complaint in
this pro se state inmate lawsuit (Docket Entry No. 20) is DENIED AS
MOOT. No proposed amended complaint was submitted for the Court’s
review.” Thus, the record does not reveal any action taken to enable Lozano
to cure the deficiencies in his pleadings. By not giving Lozano an opportunity
to cure the inadequacies in his complaint though a Spears hearing, a
questionnaire, an amended complaint, or some other method, the district
court did not adhere to our court’s mandate.
The district court offered an explanation for its handling of the case
on remand in its order denying Lozano’s Rule 59(e) motion, stating that while
Lozano “contends he was unaware” of the district court’s requirement that
a proposed amended complaint must be attached to a motion to amend, “the
Court clearly informed plaintiff of this requirement in its order of April 23,
2018.” The court further stated, “The Fifth Circuit’s order of remand did
not alter this requirement, nor did it expressly instruct the Court to order an
amended petition, a more definite statement of the facts, or a Spears
hearing.” The district court offered a similar explanation in its summary
judgment order, stating that “this Court . . . spelled out the steps plaintiff
needed to consider on remand. . . . [T]his Court informed him that a motion
for leave to amend his complaint required submission of a proposed amended
complaint.”
However, the district court read our mandate too narrowly. While we
left the exact manner of curing the inadequacies in Lozano’s complaint to the
court’s sound discretion, we instructed the district court to ensure that, on
remand, Lozano had an “adequate opportunity to cure the inadequacies in
his pleading.” Lozano, 770 F. App’x at 689. The record indicates that the
district court only explicitly “informed” Lozano of its requirement that a
motion for leave to amend must be accompanied by a proposed amended
complaint in its order of April 23, 2018, more than a year before the case was
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remanded. The district court’s above-quoted order denying Lozano’s
motion to amend as “moot” (which was issued in June 2019) also referred to
this requirement, but the denial order did not “inform[]” Lozano that he was
free to submit another motion to amend that complied with the requirement
or otherwise “spell[] out” the steps that Lozano needed to consider on
remand. For a pro se litigant, such a denial of a motion to amend is not, by
itself, an “adequate opportunity to cure the inadequacies in his pleading.” At
a minimum, having denied Lozano’s motion to amend, the district court
should have construed Lozano’s reply to the defendants’ answer (which, as
explained above, contained new allegations in addition to restating his
original ones) as a proposed amended complaint, which it should have
accepted. See Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983) (“[T]he
court was required to look beyond the inmates’ formal complaint and to
consider as amendments to the complaint those materials subsequently
filed.”); Cooper v. Sheriff, Lubbock Cnty.,
929 F.2d 1078, 1081 (5th Cir. 1991)
(“Under the liberal construction given to pro se pleadings, the magistrate
judge should have construed Cooper’s reply to the defendant’s new answer
as a motion to amend the complaint.”); Vaughn v. Collins,
8 F.3d 22 (5th Cir.
1993) (“The district court should have liberally construed Vaughn’s
‘response,’ filed after responsive pleading by the respondent, as a request to
amend, and granted it.” (citation omitted)). 4
4
The district court correctly concluded in its summary judgment order that it
could not consider the allegations that Lozano raised for the first time in his response to the
defendants’ summary judgment motion. See Cutrera v. Bd. of Supervisors of La. State Univ.,
429 F.3d 108, 113 (5th Cir. 2005) (“A claim which is not raised in the complaint but, rather,
is raised only in response to a motion for summary judgment is not properly before the
court.”). However, as previously noted, the summary judgment order did not acknowledge
the new allegations that Lozano raised in his reply to the defendants’ answer, let alone
explain why the court did not consider them.
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III.
Lozano also argues that the district court erred by granting the
defendants’ motion for summary judgment. “We review a summary
judgment de novo, ‘using the same standard as that employed by the district
court.’” Carnaby v. City of Houston, 636 F.3d 183, 187 (5th Cir. 2011).
Summary judgment is proper “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). “We construe all facts and
inferences in the light most favorable to the nonmoving party when reviewing
grants of motions for summary judgment.” Dillon v. Rogers,
596 F.3d 260,
266 (5th Cir. 2010) (citation omitted). 5
“The law of the case doctrine posits that ordinarily ‘an issue of fact or
law decided on appeal may not be reexamined either by the district court on
remand or by the appellate court on a subsequent appeal.’” Demahy, 702
F.3d at 184 (citation omitted). 6 We laid out the legal standard that governs
this case in Lozano’s previous appeal:
The district court . . . . read the pleadings as contending prison
officials simply refused to divert meals earmarked for Jewish
inmates to Muslim inmates like Lozano. That would not be a
problem.
But Lozano’s allegations in his brief on appeal suggest a
different situation—one where prison officials either had
permission to share those donations with non-Jewish inmates,
or had other non-donated foods they refused to furnish Lozano.
5
For the reasons explained above, we will treat Lozano’s complaint as having been
amended by his reply to the defendants’ answer.
6
The “mandate rule,” which we described and applied in the previous section, “is
a ‘specific application of the general doctrine of law of the case.’” Demahy, 702 F.3d at 184
(citation omitted).
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That would be a problem. Prison officials would be the source
of discriminatory action if they refused to accept or distribute
items otherwise available on equal terms.
Lozano, 770 F. App’x at 688. 7
Lozano alleged in his reply to the defendants’ answer that the
defendants had non-donated kosher foods, including tuna, peanut butter,
vegetables, beans, cereals, and TDCJ-purchased kosher meals, that they
provided to Jewish inmates but not to him. Lozano also alleged that after he
was transferred to the LeBlanc Unit, he was allowed to eat donated kosher
foods, from which an inference can be drawn that TDCJ officials had
permission to share donated kosher food with inmates not on the list of
Jewish offenders. As evidence supporting these allegations, Lozano
submitted declarations from two other inmates that corroborated his claims.
Thus, at the very least, there is a genuine dispute of material fact as to
whether “prison officials either had permission to share [the donated kosher
meals] with non-Jewish inmates, or had other non-donated foods they
refused to furnish Lozano.” Id. Accordingly, summary judgment was
inappropriate. 8
7
Under this court’s rules, unpublished opinions issued on or after January 1, 1996
“are not precedent, except under the doctrine of res judicata, collateral estoppel or law of
the case (or similarly to show double jeopardy, notice, sanctionable conduct, entitlement to
attorney’s fees, or the like).” 5th Cir. R. 47.5.4; see also Ballard v. Burton, 444 F.3d 391,
401 n.7 (5th Cir. 2006). Accordingly, while the above statement of the state action doctrine
is binding on this panel under the law of the case doctrine, it is not binding on subsequent
panels. We need not opine on the previous panel’s assertions that it “would not be a
problem” for prison officials to “simply refuse[] to divert meals earmarked for Jewish
inmates to Muslim inmates” and that “[t]here is no discriminatory state action where
prison officials act as mere conduits for a transfer from a third-party outside of the prison
to an inmate within its walls.” Lozano, 770 F. App’x at 688 (5th Cir. 2019).
8
Additionally, we note that Rabbi Goldstein testified that while he “did not
influence, have authority, or aid in the creation of making [the] restrictions concerning the
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IV.
Finally, Lozano challenges the district court’s denial without
prejudice of his motion to appoint counsel. He has also filed a motion for
appointment of counsel with this court.
“A civil rights complainant has no right to the automatic appointment
of counsel. The trial court is not required to appoint counsel for an indigent
plaintiff asserting a claim under 42 U.S.C. § 1983 . . . unless the case presents
exceptional circumstances.” Ulmer v. Chancellor,
691 F.2d 209, 212 (5th Cir.
1982) (citations omitted). The factors that courts should consider when
determining whether exceptional circumstances exist that merit the
appointment of counsel include:
(1) the type and complexity of the case; (2) whether the
indigent is capable of adequately presenting his case;
(3) whether the indigent is in a position to investigate
adequately the case; and (4) whether the evidence will consist
in large part of conflicting testimony so as to require skill in the
presentation of evidence and in cross examination.
Id. at 213 (citations omitted). “We will overturn a decision of the district
court on the appointment of counsel only if a clear abuse of discretion is
shown.” Cupit v. Jones,
835 F.2d 82, 86 (5th Cir. 1987).
When the district court denied Lozano’s motion for appointment of
counsel, it explained that “[t]he type and complexity of the instant case is not
donated Kosher meals,” he did “run[] the distribution of donations for Chabad Harvey
Relief in the Houston area,” in which capacity he “brought [the] donated Kosher meals to
the Wallace Pack unit and provided a list of Jewish offenders that were going to receive the
meals.” Given that Rabbi Goldstein also testified that he was “under contract with the
[TDCJ] to serve as the Department’s head rabbi,” on remand the district court should
consider whether Lozano is entitled to relief on the ground that Rabbi Goldstein’s actions
constitute discriminatory state action. We do not express an opinion on the ultimate merits
of this issue.
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exceptional, and plaintiff has shown himself reasonably able to represent his
own legal interests.” The district court further stated that it would
“reconsider the need to appoint counsel should this case be set for a jury
trial.” We cannot say that the district court clearly abused its discretion by
denying Lozano’s motion. However, given that after our first remand Lozano
proved unable to cure the inadequacies in his original pleadings in a manner
that complied with the district court’s procedures and that this case, which
is now being remanded for the second time, is becoming increasingly
complicated, the district court may choose to reconsider whether counsel
should be appointed to represent Lozano.
Because we are granting Lozano the relief that he seeks from us, his
motion for appointment of counsel to represent him before this court is now
moot.
V.
For the foregoing reasons, the district court’s order granting the
defendants’ motion for summary judgment is REVERSED and the case is
REMANDED for further proceedings consistent with this opinion.
Lozano’s motion for appointment of counsel to represent him before this
court is DENIED AS MOOT.
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