IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-60561
Conference Calendar
HOWARD HAMMOND,
Plaintiff-Appellant,
versus
ROBERT L. JOHNSON; MISSISSIPPI DEPARTMENT OF CORRECTIONS;
FRED CHILDS; CENTRAL MISSISSIPPI CORRECTION FACILITY,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:00-CV-445-WS
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December 13, 2000
Before DAVIS, STEWART, and PARKER, Circuit Judges.
PER CURIAM:*
Howard Hammond (#57034), a state prisoner, has appealed the
district court's judgment dismissing his in forma pauperis
("IFP") civil rights complaint for failure to state a claim under
28 U.S.C. § 1915(e)(2)(B)(ii). Hammond concedes that he does not
have a constitutional right to be housed at a particular
institution, see Sandin v. Conner, 515 U.S. 472, 484 (1995), but
argues that the defendants could not impinge upon his
constitutional "right to marriage" by housing him and his wife in
different institutions and by limiting contact visitation with
*
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this opinion should not be published and is not precedent except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. 00-60561
-2-
his wife. This argument is without merit. "[F]or convicted
prisoners visitation privileges are a matter subject to the
discretion of prison officials." Berry v. Brady, 192 F.3d 504,
508 (5th Cir. 1999) (internal brackets and quotation marks
omitted). Hammond "has no constitutional right to visitation
privileges." Id.
Hammond contends for the first time on appeal that the
defendants intended to make an example of him to discourage
marriage between inmates. Hammond argues that the defendants
could not retaliate against him for exercising his constitutional
right of marriage. This court will not consider a new theory of
relief raised for the first time on appeal. Leverette v.
Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir. 1999), cert.
denied, 120 S. Ct. 982 (2000).
Because the appeal is frivolous, it is DISMISSED. See
Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983); 5th Cir. R.
42.2. The dismissal of the instant appeal and the dismissal for
failure to state a claim by the district court each count as a
strike for purposes of 28 U.S.C. § 1915(g). See Adepegba v.
Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). We CAUTION
Hammond that once he accumulates three strikes, he may not
proceed IFP in any civil action or appeal filed while he is
incarcerated or detained in any facility unless he is under
imminent danger of serious physical injury. See 28 U.S.C.
§ 1915(g).
APPEAL DISMISSED; SANCTION WARNING ISSUED.