Howard v. Wilson , 176 F. App'x 468 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 11, 2006
Charles R. Fulbruge III
Clerk
No. 04-61018
Confererce Calendar
JERICO HOWARD, also known as Shakuula Romello Qionna,
Plaintiff-Appellant,
versus
MICHAEL A. WILSON, Superintendent, in His Individual Capacity;
LAWRENCE KELLY, Superintendent, in His Official Capacity; LARRY
HARDEE, Legal Claims Adjudicator, in His Official and Individual
Capacities; LETITIA ROACH, Offender Services, in Her Official and
Individual Capacities; LORENE SCOTT, Mississippi State
Penitentiary Records, in Her Individual and Official Capacities,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 4:03-CV-455
--------------------
Before JONES, Chief Judge, and JOLLY and DAVIS, Circuit Judges.
PER CURIAM:*
Jerico Howard, Mississippi prisoner # 65919, has filed a
motion to proceed in forma pauperis (IFP) on appeal from the
dismissal of his action under 42 U.S.C. § 1983. The district
court denied Howard’s motion to appeal IFP and certified that the
appeal was not taken in good faith.
*
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that this opinion should not be published and is not precedent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. 04-61018
-2-
By moving to proceed IFP, Howard is challenging the district
court’s certification. See Baugh v. Taylor, 117 F.3d 197, 202
(5th Cir. 1997). Because the merits of Howard’s appeal are
“inextricably intertwined” with the district court’s
certification that the appeal was not taken in good faith, we
determine both issues, denying IFP and dismissing the appeal.
See id.
Howard fails to allege a constitutional violation for
purposes of his claim that the refusal by the Mississippi
Department of Corrections to recognize his “Muslim identity”
impinges upon his First Amendment rights. Although the adoption
of a Muslim name is considered an exercise of religious freedom,
see Felix v. Rolan, 833 F.2d 517, 518 (5th Cir. 1987), the
refusal by prison officials to recognize the name change does not
violate his free exercise of religion. See Matthews v. Morales,
23 F.3d 118, 119-20 (5th Cir. 1994). Under these circumstances,
the district court did not err in dismissing Howard’s complaint
for failure to state a claim. See Howard v. King, 707 F.2d 215,
219-20 (5th Cir. 1983). Howard’s IFP motion is denied, and his
appeal is dismissed as frivolous. See 5TH CIR. R. 42.2.
The district court’s dismissal of Howard’s complaint for
failure to state a claim, and the dismissal of this appeal as
frivolous, both count as strikes under 28 U.S.C. § 1915(g).
Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996).
Howard is cautioned that if he accumulates three strikes, he will
No. 04-61018
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no longer be allowed to proceed IFP in any civil action or appeal
filed while he is incarcerated or detained in any facility
unless she is under imminent danger of serious physical injury.
See 28 U.S.C. § 1915(g).
IFP MOTION DENIED; APPEAL DISMISSED AS FRIVOLOUS; SANCTION
WARNING ISSUED.