Canady v. Thaler

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 4, 2001
• Docket: 00-20952
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-20952 Summary Calendar

WARREN P. CANADY; ET AL,

Plaintiffs,

WARREN P. CANADY,

Plaintiff-Appellant,

versus

M.B. THALER; R.J. PARKER; C.S. STAPLES; T. MERCHANT; H. HARRIS; D.K. CROWLEY,

Defendants-Appellees.

- - - - - - - - - - Appeal from the United States District Court for the Southern District of Texas USDC No. H-97-CV-1680 - - - - - - - - - - May 29, 2001

Before JOLLY, SMITH, and DUHÉ, Circuit Judges.

PER CURIAM:1

Warren P. Canady, Texas prisoner # 723784, appeals the

district court’s dismissal of his 42 U.S.C. § 1983 civil rights

complaint for failure to state a claim. He argues that for

approximately a year and a half he was denied his First Amendment

right to religious freedom, because the defendants prevented him

1 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. from attending Friday prayer services as required by his Islamic

faith.

In his complaint, Canady alleged an equal protection

violation, but he failed to brief the on appeal; therefore, it is

waived. See Brinkmann v. Dallas County Deputy Sheriff Abner, 813

F.2d 744, 748 (5th Cir. 1987). The district court’s dismissal is

AFFIRMED insofar as it relates to Canady’s equal protection claim.

The district court erred when it dismissed Canady’s complaint

for failure to state a claim. Without drawing any conclusions

regarding the merit of Canady’s underlying claim, this court holds

that at the very least he has alleged a First Amendment free

exercise claim that should have been assessed in light of the

factors outlined in Turner v. Safley, 482 U.S. 78 (1987). See

Green v. Polunsky, 229 F.3d 486, 488 (5th Cir. 2000)(analyzing free

exercise claim using Turner factors); Beck v. Lynaugh, 842 F.2d

759, 761 (5th Cir. 1988)(pre-Turner case vacating district court

dismissal as frivolous on prisoners’ religious freedom claim that

he was excluded from chapel service while in administrative

segregation). Accordingly, the district court’s order of dismissal

is VACATED with respect to Canady’s free exercise claim, and the

case is REMANDED to the district court for further consideration.

AFFIRMED IN PART; VACATED IN PART AND REMANDED.