     Case: 19-20175      Document: 00515327351         Page: 1    Date Filed: 03/02/2020




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                          FILED
                                                                       March 2, 2020
                                      No. 19-20175
                                                                       Lyle W. Cayce
                                                                            Clerk

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 19-20175     Document: 00515327351      Page: 2   Date Filed: 03/02/2020


                                  No. 19-20175

      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.

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