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

                                                 FILED
                                                                          February 26, 2009

                                     No. 08-40563                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



JERRY LYNN BISBY

                                                   Plaintiff-Appellant
v.

ASSISTANT WARDEN RICHARD CRITES; REGIONAL DIRECTOR RAY
CASTRO; NATHANIEL QUARTERMAN, DIRECTOR, TEXAS
DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL
INSTITUTIONS DIVISION

                                                   Defendants-Appellees




                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 2-08-CV-23


Before GARWOOD, JOLLY and SOUTHWICK, Circuit Judges..
PER CURIAM:*
       Jerry Lynn Bisby, Texas prisoner #654038, appeals from the dismissal of
his action brought pursuant to 42 U.S.C. § 1983 and the Religious Land Use and




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-40563

Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc-1(a).1                     Bisby
contends that the grooming policies of the Texas Department of Criminal Justice
(TDCJ) violate the RLUIPA because his religious beliefs prohibit him from
cutting his hair or trimming his beard.            He further contends that TDCJ’s
grooming policies violate the Equal Protection Clause because prisoners in other
states and in the federal prison system are allowed to grow out their hair and
beards and because TDCJ does not apply the same policies to female prisoners.
       We have upheld TDCJ’s grooming policies against a RLUIPA challenge.
See Longoria v. Dretke, 507 F.3d 898, 904 (5th Cir. 2007). We also have rejected
an argument that TDCJ’s grooming policies violate male prisoners’ equal
protection rights because female prisoners are allowed to grow longer hair than
male prisoners are. See id. at 904-05. Moreover, Bisby does not indicate how
prisoners in other state systems and the federal system are similarly situated
to Texas prisoners, nor does he indicate how Texas prisoners are singled out by
Texas authorities for treatment different from prisoners in other states and the
federal system. Thus, Bisby cannot prevail on his equal protection claim.
       Based upon the analysis above, Bisby’s appeal is without arguable merit
and is dismissed as frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th
Cir. 1983); 5 TH C IR. R. 42.2. the dismissal of this appeal counts as a strike for
purposes of 28 U.S.C. § 1915(g), as did the district court’s dismissal.                 See
Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). Bisby previously
accumulated one strike in Bisby v. Woods, No. 7:00-CV-00253-R (N.D. Tex. Jan.
5, 2001). Because Bisby thus has accumulated three strikes, effective with the
decision herein, he is barred from proceeding in forma pauperis (IFP) in any civil


       1
         The dismissal was based on his complaint, the amended complaint and the hearing
under Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985). The district court dismissed the suit
with prejudice, having adopted the magistrate’s recommendation to dismiss with prejudice for
failure to state a claim and as frivolous pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915
(A)(b)(1).

                                             2
                                  No. 08-40563

action or appeal filed while he is incarcerated or detained in any facility unless
he is under imminent danger of serious physical injury. See § 1915(g). Whether
the imposition of the section 1915(g) bar herein affects Bisby’s appeal or IFP
status in the pending appeal in Bisby v. Garza, appeal no. 08-40876, we
determine under these particular circumstances, is a matter which is best
decided by the panel deciding said case no. 08-40876.
      APPEAL DISMISSED AS FRIVOLOUS; 28 U.S.C. § 1915(g) BAR
IMPOSED.




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