Derrick Scott v. Michael Thomas, et al
UNPUBLISHED OPINION ORDER FILED. [13-30763 Dismissed as Frivolous] Judge: PEH , Judge: JLD , Judge: JEG Mandate pull date is 02/26/2014; denying motion to proceed IFP in accordance with PLRA filed by Appellant Mr. Derrick Scott [7436512-2] [13-30763]
Date Filed: 02/05/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
February 5, 2014
Lyle W. Cayce
MICHAEL THOMAS; UNKNOWN COLLINS,
GAZPARD, EMT; JAMES M. LEBLANC,
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:13-CV-299
Before HIGGINBOTHAM, DENNIS, and GRAVES, Circuit Judges.
PER CURIAM: *
Derrick Scott, Louisiana prisoner # 126372, seeks leave to proceed in
forma pauperis (IFP) to appeal the district court’s dismissal without prejudice
of his 42 U.S.C. § 1983 complaint for failure to exhaust his administrative
remedies in conformity with 42 U.S.C. § 1997e(a). The district court certified
that an appeal would not be taken in good faith. By moving this court for leave
to proceed IFP, Scott is challenging that certification. See Baugh v. Taylor,
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Date Filed: 02/05/2014
117 F.3d 197, 202 (5th Cir. 1997). Our inquiry into whether the appeal is taken
in good faith “is limited to whether the appeal involves legal points arguable
on their merits (and therefore not frivolous).” Howard v. King, 707 F.2d 215,
220 (5th Cir. 1983) (internal quotation marks and citation omitted).
Pursuant to the Prison Litigation Reform Act (PLRA), “[n]o action shall
be brought with respect to prison conditions under section 1983 of this title, or
any other Federal law, by a prisoner confined in any jail, prison, or other
correctional facility until such administrative remedies as are available are
exhausted.” 42 U.S.C. § 1997e(a). The PLRA’s exhaustion requirement is
mandatory, and unexhausted claims may not be brought in court. Jones v.
Bock, 549 U.S. 199, 211 (2007). Generally, a prisoner’s failure to exhaust
administrative remedies is an affirmative defense under the PLRA and
prisoners “are not required to specially plead or demonstrate exhaustion in
their complaints.” Id. at 216. However, we have interpreted Jones to allow a
district court to sua sponte dismiss a case for failure to state a claim, predicated
on failure to exhaust, “if the complaint itself makes clear that the prisoner
failed to exhaust.” Carbe v. Lappin, 492 F.3d 325, 328 (5th Cir. 2007).
Scott’s complaint demonstrates that he failed to properly exhaust his
administrative remedies before filing suit. “[P]risoners must complete the
administrative review process in accordance with the applicable procedural
rules - rules that are defined not by the PLRA, but by the prison grievance
process itself.” Jones, 549 U.S. at 218 (internal citation and quotation marks
Scott’s complaint indicated that he failed to comply with the
applicable rules by failing to file a Step 1 Administrative Remedy Program
(ARP) request and moving directly to filing a Step 2 request with the Secretary
of the Louisiana Department of Public Safety and Corrections. Scott also
asserted that, because his claims constituted an emergency, he could move
Date Filed: 02/05/2014
directly to filing his request with the Secretary. Assuming arguendo that his
claims qualified as an emergency, Scott failed to properly file an emergency
request. Emergency requests are submitted to the “shift supervisor,” who then
forwards the request “to the level at which corrective action can be taken.” LA.
ADMIN. CODE tit. 22, Pt. I § 325(J)(5).
Scott’s appeal is without arguable merit and is thus frivolous.
Howard, 707 F.2d at 220. Because the appeal is frivolous, it is dismissed. See
5TH CIR. R. 42.2. The dismissal of Scott’s appeal counts as a strike for purposes
of 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th
Cir. 1996). Scott is cautioned that if he accumulates three strikes, he will not
be able to 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 § 1915(g).
IFP MOTION DENIED; APPEAL DISMISSED; SANCTION WARNING
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