Canady v. Thaler, et al

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that this opinion should not be published and is not precedent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.
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.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-97-CV-1680
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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

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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.

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