Serving kosher foods to jews but not muslims would violate equal protection clause


On August 26, 2017, Eric 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 Texas Department of Criminal Justice (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 first determined that collateral estoppel barred Lozano 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, the 5th circuit affirmed the dismissal of Lozano’s Free Exercise claim. 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 it is possible that Lozano has pled or could plead an Equal Protection claim. The district court improperly denied Lozano an adequate opportunity to cure the inadequacies in his pleading by dismissing his complaint with prejudice.

The case was remanded to the district court on June 14, 2019. 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 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.

The district 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. Thus, it granted a motion for summary judgement for the defendants. On appeal, the 5th circuit reversed.


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).

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. That would be a problem.

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.

Accordingly, summary judgment was inappropriate.