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.

-------------------- Appeal from the United States District Court for the Southern District of Mississippi USDC No. 3:00-CV-445-WS -------------------- 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

(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,

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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

(5th Cir. 1999) (internal brackets and quotation marks

omitted). Hammond "has no constitutional right to visitation

privileges."

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.,

(5th Cir. 1999), cert.

denied,

(2000).

Because the appeal is frivolous, it is DISMISSED. See

Howard v. King,

(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

(g). See Adepegba v.

Hammons,

(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

(g).

APPEAL DISMISSED; SANCTION WARNING ISSUED.