by Matt Clarke

On July 22, 2022, the U.S. Court of Appeals for the Fifth Circuit held that a district court erred when it tossed a Muslim prisoner’s lawsuit over denial of Kosher meals during a hurricane evacuation from his Texas prison. It was the Court’s second review in the case, having previously reversed an earlier dismissal because the prisoner was not given adequate opportunity to amend his complaint. Here the court chided the district court for failing to adhere to that mandate and adequately allow amendment on remand.

The prisoner, Eric Demond Lozano, was incarcerated at the Stringfellow Unit when it was evacuated for Hurricane Harvey, a Category 4 storm that struck in August 2017. Lozano was taken to the Pack Unit for temporary evacuation housing.

Stringfellow Unit is enhanced with a Kosher kitchen and designated for Jewish prisoners. But meals from the kitchen also conformed to the requirements of Lozano’s Muslim faith. The Pack Unit had no Kosher kitchen, so an organization called Chaabad Harvey Relief donated Kosher meals for evacuated Jewish prisoners. Chief Rabbi Goldstein of the Texas Department of Criminal Justice (TDCJ) was “running the distribution of donations for Chabad Harvey Relief in the Houston area,” the Court recalled. He “received donated pre-packaged Kosher meals…to be donated only to Jewish inmates affected by Hurricane Harvey.” He delivered to the Pack Unit some of the meals that a list of evacuated Jewish prisoners were authorized to receive.

At the Pack Unit, Lozano repeatedly requested but was denied Kosher meals, despite appealing to the chaplain, kitchen captain, assistant warden and head warden. After evacuation, he was sent to LeBlanc Unit, where he started receiving donated pre-packaged Kosher meals.

In a pro se federal civil rights suit alleging violations of the Fourteenth Amendment’s Equal Protection Clause and other claims, Lozano said he lost 14 pounds, suffered from mental and physical distress, depression and suicidal ideation from being denied Kosher meals. The federal court for the Southern District of Texas dismissed the complaint with prejudice. On appeal, the Court vacated dismissal of the Equal Protection claims, noting that “the district court improperly denied Lozano an ‘adequate opportunity to cure the inadequacies in his pleading.’”

On remand, Lozano filed a motion to amend his complaint. But the district court denied it, saying the prisoner filed “[n]o proposed amended complaint for the Court to review.” Defendants filed an answer and Lozano filed a reply, including several new allegations. The district court then granted defendants summary judgment and dismissed the complaint.

Once more Lozano appealed. Taking up the case again, the Fifth Circuit noted that its prior opinion stated Lozano had a plausible claim and had not been given an adequate opportunity to amend his complaint. But on remand, the district court denied his motion to amend without giving instructions on how to amend the complaint. It also did not hold an evidentiary hearing nor give Lozano a chance to clarify the facts. Therefore, the district court did not adhere to the original mandate, the Fifth Circuit concluded.

Granting Defendants summary judgment was also an error, the Court said, since Lozano’s pleadings – supported by two Jewish prisoners’ affidavits – created a material fact dispute for a jury to determine whether prison officials had Kosher food available for non-Jewish prisoners. Therefore, judgment was reversed and the case remanded. See: Lozano v. Schubert, 41 F.4th 485 (5th Cir. 2022).

The case has now returned to the district court, and PLN will update developments as they are available. See: Lozano v. Schubert, USDC (S.D. Tex.), Case No. 4:18-cv-01183.

Meanwhile, Lozano has at least three other claims pending at the district court. In one, arising from the same inability to get halal meals during evacuation for Hurricane Harvey, the Court affirmed dismissal of claims under the Free Exercise of Religion clause of the First Amendment on August 9, 2019. Pointing to Baranowski v. Hart, 486 F.3d 112 (5th Cir. 2007), the Court said “we have ‘already ruled that prisons need not respond to particularized religious dietary requests to comply with the First Amendment.’” But a companion claim under the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc, et seq., was remanded to the district court, where Plaintiff has made little progress; his most recent request for appointed counsel was denied on April 12, 2023. See: Lozano v. Davis, 774 Fed. Appx. 263 (5th Cir. 2019); and USDC (S.D. Tex.), Case No. 4:16-cv-02507 (2023).

In another complaint, Lozano alleged constitutional and RLUIPA violations because TDCJ officials “denied him a designated unit or dormitory for Muslim inmates,” hindering “his devotional obligations for Jum’ah, Taleem, and Quranic studies,” as well as denying him “a private space for prayer” and “showers that are separate from the general population.” On March 29, 2021, the district court dismissed all claims and granted Defendants summary judgment; an appeal to that ruling is pending before the Fifth Circuit, where Lozano will be represented by appointed pro bono counsel, attorney J. Robert Sheppard III of King & Spalding in Houston. See: Lozano v. Collier, USDC (S.D. Tex.), Case No. 3:18-cv-00237 (2019); and USCA (5th Cir.), Case No. 22-40116.

The other complaint arose from an incident most prisoners will understand: While at Stringfellow Unit, the fan stopped working in Lozano’s cell during a muggy August 2019, and while waiting more than a month for a replacement, Lozano suffered medication-induced heat sensitivity. But it didn’t end there, he claims; after he filed grievances, guards allegedly retaliated against him with shakedowns, confiscating his legal materials and religious gear, some of which was destroyed. The district court refused his request for money damages but otherwise denied Defendants’ request for summary judgment on February 23, 2023. See: Lozano v. Collier, USDC (S.D. Tex.), Case No. 3:20-cv-00116 (2023).

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