Hester v. Ituah

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-20175

CALVIN JARROD HESTER,

Plaintiff-Appellant

v.

FOLASHADE ITUAH,

Defendant-Appellee

Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:18-CV-197

Before JONES, HIGGINSON, and OLDHAM, Circuit Judges.
PER CURIAM:
*

Calvin Jarrod Hester, Texas prisoner # 1472075, moves for leave to
proceed in forma pauperis (IFP) on appeal. He filed this 42 U.S.C. § 1983
action against Folashade Ituah, the kitchen second shift supervisor at the
Darrington Unit, for gross negligence and willful intent to include pork in his
meal without notification in violation of his First and Eighth Amendment
rights as a Muslim.

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
United States Court of Appeals
Fifth Circuit
FILED
March 2, 2020

Lyle W. Cayce
Clerk
Case: 19-20175 Document: 00515327351 Page: 1 Date Filed: 03/02/2020

No. 19-20175
2
The district court dismissed Hester’s complaint with prejudice as
frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B). The district court denied
Hester’s motion to proceed IFP on appeal, certifying that the appeal was not
taken in good faith. See id. § 1915(a)(3).
A complaint is frivolous “if it lacks an arguable basis in law or fact.”
Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir. 2005). Similarly, an appeal is
taken in good faith only if it “involves legal points arguable on their
merits . . . .” Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983) (quotation
omitted).
We express no view on the ultimate merits of Hester’s appeal, but we
disagree that an appeal in this case would be taken in bad faith. We note, for
example, that the district court justified the dismissal and bad-faith
certification on the basis that “one instance” of being served pork “does not
violate his constitutional right.” Before it was dismissed, however, Hester had
moved to amend his complaint to include additional defendants and identify
further instances of perceived anti-Muslim discrimination. Although FED. R.
CIV. P. 15(a)(2) directs district courts to “freely give leave” to amend, the court
below rejected this motion solely because the defendant “ha[d] already
appeared and filed her answer to the complaint.” But see N. Cypress Med. Ctr.
Operating Co. v. Aetna Life Ins. Co., 898 F.3d 461, 478–79 (5th Cir. 2018)
(noting that delay in seeking leave to amend “is insufficient” to deny a motion
for leave: “The delay must be undue, i.e., it must prejudice the nonmoving
party or impose unwarranted burdens on the court.” (quotation omitted)).
There is therefore an arguable issue as to whether the district court
ought to have granted the motion to amend, or, alternatively, whether the
district court should have dismissed without prejudice to an amended
complaint.
MOTION FOR IFP GRANTED.
Case: 19-20175 Document: 00515327351 Page: 2 Date Filed: 03/02/2020