Koon v. Stalder , 143 F. App'x 630 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT September 29, 2005
Charles R. Fulbruge III
Clerk
No. 04-31271
Summary Calendar
WALTER KOON,
Plaintiff-Appellant,
versus
RICHARD L. STALDER; BURL CAIN,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:04-CV-197
--------------------
Before JOLLY, DAVIS and OWEN, Circuit Judges.
PER CURIAM:*
Walter Koon, Louisiana death row inmate # 351860, appeals the
district court’s dismissal of his civil rights suit, filed pursuant
to 42 U.S.C. § 1983, for failure to exhaust administrative
remedies. Koon’s argument that administrative remedies on the due
process and equal protection claims he raised were unavailable to
him under Pope v. State, 792 So. 2d 713 (La. 2001), is unavailing
as he is challenging the conditions of his confinement. See
Ferrington v. Louisiana Dep’t of Corr., 315 F.3d 529, 532 (5th Cir.
*
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this opinion should not be published and is not precedent except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. 04-31271
-2-
2002); Peterson v. Tofton, 828 So. 2d 160, 163 (La. Ct. App. 2004).
Inasmuch as the prison’s records show that Koon did not exhaust the
instant claims, he has failed to exhaust his administrative
remedies as is required by the Prison Litigation Reform Act (PLRA).
42 U.S.C. § 1997e(a); Ferrington, 315 F.3d at 531.
This appeal is without arguable merit and is thus frivolous.
See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). Because
it is frivolous, it is DISMISSED. See 5TH CIR. R. 42.2. Koon now
has one strike against him under the PLRA. See 28 U.S.C.
§ 1915(g); Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir. 1996).
Koon is CAUTIONED that if he accumulates three strikes, he will no
longer be allowed to proceed in forma pauperis 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 28 U.S.C. § 1915(g).
APPEAL DISMISSED AS FRIVOLOUS; SANCTION WARNING ISSUED.