Carlos McGrew v. Steve Brentgetsy, et al

Filing

UNPUBLISHED OPINION ORDER FILED. [10-30416 Affirmed in Part, Dismissed in Part, Vacated in Part and Remanded.] Judge: EGJ , Judge: EMG , Judge: CES. Mandate pull date is 10/13/2010; granting motion to proceed IFP in accordance with PLRA filed by Appellant Mr. Carlos McGrew [6532253-2] [10-30416]

Carlos McGrew v. Steve Brentgetsy, et al

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Case: 10-30416

Document: 00511241326

Page: 1

Date Filed: 09/22/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 10-30416 S u m m a r y Calendar September 22, 2010 Lyle W. Cayce Clerk

C A R L O S A. MCGREW, P la in t if f -A p p e lla n t v. S T E V E BRENTGETSY; JAMES TILLMAN, Major; C. HONEYCUTT, Colonel; J O E LEMARTINIERE, Warden, Defendants - Appellees

A p p e a l from the United States District Court fo r the Middle District of Louisiana U S D C No. 3:09-CV-1022

B e fo r e JOLLY, GARZA, and STEWART, Circuit Judges. P E R CURIAM:* C a r lo s A. McGrew, Louisiana state prisoner # 413135, proceeding pro se, m o v e s for leave to proceed in forma pauperis (IFP) in an appeal of the district c o u r t's dismissal without prejudice of his civil rights complaint for failure to e x h a u s t administrative remedies and from the court's denial of his motion s e e k in g a temporary restraining order (TRO) and a preliminary injunction. McGrew's IFP motion is a challenge to the district court's certification that his

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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

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Dockets.Justia.com

Case: 10-30416

Document: 00511241326 Page: 2 No. 10-30416

Date Filed: 09/22/2010

a p p e a l is not taken in good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th C ir . 1997). This court's inquiry into whether the appeal is taken in good faith " is limited to whether the appeal involves legal points arguable on their merits (a n d therefore not frivolous)." Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983) (in t e r n a l quotation marks and citation omitted). T h i s court lacks jurisdiction over the denial of McGrew's request for a T R O . See Faulder v. Johnson, 178 F.3d 741, 742 (5th Cir. 1999). McGrew has id e n tifie d no "extraordinary circumstances" warranting a reversal of the district c o u r t's denial of his motion for a preliminary injunction. See White v. Carlucci, 8 6 2 F.2d 1209, 1211 (5th Cir. 1989). The district court dismissed sua sponte McGrew's civil rights complaint for fa ilu r e to exhaust administrative remedies under 42 U.S.C. § 1997e(a). In Jones v . Bock, the Supreme Court held that an inmate's failure to exhaust is an a ffir m a t iv e defense and that "inmates are not required to specially plead or d e m o n s t r a t e exhaustion in their complaints." 549 U.S. 199, 216 (2007). We h a v e interpreted Jones to allow a district court to "dismiss a case prior to service o n defendants for failure to state a claim, predicated on failure to exhaust, if the c o m p la in t itself makes clear that the prisoner failed to exhaust." Carbe v. L a p p in , 492 F.3d 325, 328 (5th Cir. 2007) (action under Bivens v. Six Unknown N a m e d Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971)). In Carbe, w e stated that a "district court cannot by local rule sidestep Jones by requiring p r is o n e r s to affirmatively plead exhaustion." 492 F.3d at 328. The district court's dismissal of McGrew's complaint based on his failure t o exhaust administrative remedies was premature because it was not clear from t h e face of his complaint that McGrew had failed to exhaust all remedies a v a ila b le to him. See Jones, 549 U.S. at 216-17; Carbe, 492 F.3d at 328;

H o llo w a y v. Gunnell, 685 F.2d 150, 154 (5th Cir. 1982). Thus, the district court e r r e d in sua sponte dismissing McGrew's complaint for failure to exhaust a d m in is t r a t iv e remedies. 2

Case: 10-30416

Document: 00511241326 Page: 3 No. 10-30416

Date Filed: 09/22/2010

M c G r e w 's motion for IFP is granted. His appeal from the denial of a TRO is dismissed. The district court's judgment is affirmed with respect to the denial o f a preliminary injunction. The district court's judgment dismissing McGrew's c iv il rights complaint for failure to exhaust administrative remedies is vacated a n d the case is remanded for further proceedings consistent with this opinion. I F P GRANTED; APPEAL DISMISSED IN PART and AFFIRMED IN P A R T ; VACATED and REMANDED.

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