United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS September 24, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-40785
Summary Calendar
KENNETH EARL NEAL
Plaintiff - Appellant
v.
WELDON LUCAS, FNU FLEMING, Chief Deputy,
JOE MITCHELL
Defendants - Appellees
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:02-CV-165
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Before KING, Chief Judge, and JOLLY and WIENER, Circuit Judges.
PER CURIAM:*
Kenneth Earl Neal, Texas prisoner #1180225, appeals the
district court’s sua sponte dismissal of his civil rights action
pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A. Neal sought
declaratory, injunctive, and monetary relief, both compensatory
and punitive, pursuant to 42 U.S.C. § 1983 for alleged violations
of his constitutional rights and the Religious Land Use and
*
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that this opinion should not be published and is not precedent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.
No. 03-40785
-2-
Institutionalized Persons Act (RLUIPA) of 2000, 42 U.S.C.
§ 2000cc-1 et seq. He argues that the prison denied him access
to the following religious publications: The United States and
Britain in Bible Prophecy; Judah’s Sceptre and Joseph’s
Birthright; God’s Covenant People; The Lost Chapter of Acts of
the Apostles; God’s Law; Heirs of the Promise; The Restitution of
All Things; The Iron Curtain over America; Eve: Did She or Didn’t
She?; The Abrahamic Covenant; Standing on the Shoulders of
Giants; Mark of the Beast, Part One; Mark of the Beast, Part Two;
Spiritual Israel; The Sacred Names of God; Could You be an
Israelite and not Know it?; Yah’s Laws: Are They for Today; and
Baptism by the Scriptures.
Prisoners retain those First Amendment rights that are
consistent with their status as prisoners or with the legitimate
penological objectives of the prison. Hudson v. Palmer, 468 U.S.
517, 523 (1984). A prison regulation may validly restrict,
however, material advocating racial hatred on the basis that it
causes a serious danger of violence. Chriceol v. Phillips, 169
F.3d 313, 316 (5th Cir. 1999). The RLUIPA declares that
institutions receiving federal financial assistance may not
“impose a substantial burden on the religious exercise” of an
institutionalized person unless it is the “least restrictive
means” of furthering “a compelling governmental interest.” 42
U.S.C. § 2000cc-1(a).
No. 03-40785
-3-
As Neal is no longer in the Denton County Jail, his claims
for injunctive and declaratory relief are moot. See Herman v.
Holiday, 238 F.3d 660, 665 (5th Cir. 2001). Neal’s claims for
monetary relief remain, however, and, on this record, it appears
that the district court’s dismissal of Neal’s claims was
premature because the court did not consider whether the prison
had a regulation restricting Neal’s access to all or some
religious publications and whether the prison regulation, as
applied to the particular publications sought by Neal, violated
either Neal’s constitutional rights and/or RLUIPA.
See Thornburgh v. Abbott, 490 U.S. 401, 419 (1989) (affirming
remand to district court for an examination of prison
restrictions on inmates’ receipt of publications as applied to
specific publications).
Accordingly, the judgment is AFFIRMED in part and REVERSED
in part, and this case is REMANDED for proceedings consistent
with this opinion. Neal’s motion to supplement the record with
the above-noted publications is GRANTED.