Hastey v. Bush , 82 F. App'x 370 ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 28, 2003
Charles R. Fulbruge III
Clerk
No. 02-11382
Summary Calendar
MICHAEL LEE HASTEY,
Plaintiff-Appellant,
versus
GEORGE W. BUSH, Etc., Et Al.,
Defendants,
RICK PERRY, Governor of Texas;
JOHN CORNYN, Attorney General of Texas,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:02-CV-234-C
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Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Michael Lee Hastey appeals from the dismissal of his claims
against Governor Rick Perry and former Attorney General of Texas
John Cornyn. Hastey moves for leave to file a second amended
complaint; his motion is DENIED. He moves for this court to
suspend Texas’s animal protection laws; his motion is DENIED.
*
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that this opinion should not be published and is not precedent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. 02-11382
-2-
Hastey contends that TEX. PENAL CODE ANN. § 42.09 (Vernon
2003), which penalizes cruelty to animals violates the Fourth,
Fifth, Ninth, Tenth, and Fourteenth Amendments; that the statute
violates the Establishment and Free Exercise Clauses of the First
Amendment; that the district court erred by dismissing his action
with prejudice; and that the district court erred by denying his
motion to amend his complaint. Hastey’s contentions are
unavailing.
Hastey’s Fourth, Fifth, Ninth, and Fourteenth Amendment
contentions are unripe for review, as he has not alleged that any
actions have been taken against him pursuant to the authority of
the challenged statute. See Orix Credit Alliance, Inc. v. Wolfe,
212 F.3d 891, 895-96 (5th Cir. 2000). We do not address Hastey’s
Tenth Amendment claim, as it is raised for the first time on
appeal. See Leverette v. Louisville Ladder Co., 183 F.3d 339,
342 (5th Cir. 1999).
Hastey has not alleged facts suggesting government coercion
regarding religion or actual interference with his religious
beliefs. The district court did not err by dismissing his Free
Exercise Clause claim for failure to state a claim. See Murray
v. City of Austin, 947 F.2d 147, 152 (5th Cir. 1991). Section
42.09, on its face, has the secular purpose of providing for
humane treatment of animals. The primary effect of the statute
neither advances not inhibits religious doctrine -- rather, the
primary effect is to protect animals. The statute does not
contain provisions leading to excessive government entanglement
No. 02-11382
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in religion. The district court did not err by dismissing
Hastey’s Establishment Clause claim for failure to state a claim.
Id. at 153.
Because the district court lacked jurisdiction to address
Hastey’s claims under the Fourth, Fifth, Ninth, and Fourteenth
Amendments, the dismissal of those claims should have operated
without prejudice. See Cargill Ferrous Intern. v. SEA PHOENIX
MV, 325 F.3d 695, 705 (5th Cir. 2003). Finally, because the
district court denied Hastey’s motion for leave to amend after
Hastey already had filed his notice of appeal, we lack
jurisdiction to address whether the district court erred by
denying the motion. See United States v. Carr, 979 F.2d 51, 55
(5th Cir. 1992).
AFFIRMED AS MODIFIED. MOTION FOR LEAVE TO AMEND DENIED.
MOTION TO SUSPEND LAWS DENIED.