Farley v. Simpson , 178 F. App'x 340 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 24, 2006
Charles R. Fulbruge III
Clerk
No. 04-10849
WILLIAM NATHAN FARLEY
Plaintiff - Appellant
v.
T SIMPSON, Warden; NATHANIEL QUARTERMAN, Director State Jail
Division; UNIVERSITY OF TEXAS MEDICAL BRANCH
Defendants - Appellees
Appeal from the United States District Court
for the Northern District of Texas, Dallas
No. 3:04-cv-00585
Before KING, STEWART and DENNIS, Circuit Judges.
PER CURIAM:*
William Farley, a former Texas state prisoner proceeding pro
se, has filed a motion with this court for leave to proceed in
forma pauperis (“IFP”) to appeal the district court’s dismissal
of his 42 U.S.C. § 1983 action, which alleged various violations
of his constitutional rights while he was incarcerated in the
Texas Department of Criminal Justice Hutchins State Jail
facility. By moving in this court to proceed IFP on appeal,
*
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that this opinion should not be published and is not precedent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.
Farley challenges the district court’s certification that his
appeal was not taken in good faith because his appeal is
frivolous. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir.
1997); 28 U.S.C. § 1915(a)(3); FED. R. APP. P. 24(a)(5). 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 (and therefore not frivolous).’” Howard v. King,
707 F.2d 215, 220 (5th Cir. 1983) (citation omitted); see also
Neitzke v. Williams, 490 U.S. 319, 325 (1989). If the appeal is
frivolous, this court may dismiss it sua sponte under 5th CIR. R.
42.2. Baugh, 117 F.3d at 202 n.24.
Farley contends that the district court erred in dismissing
his claim for failure to exhaust his administrative remedies
pursuant to 42 U.S.C. § 1997e(a). However, the record shows that
Farley did not exhaust his administrative remedies before filing
his lawsuit in the district court as is required by the Prison
Litigation Reform Act.1 42 U.S.C. § 1997e(a); Ferrington v. La.
Dep’t of Corr., 315 F.3d 529, 531 (5th Cir. 2002). Farley does
not challenge the district court’s dismissal on this ground
beyond his conclusory statement that he “did in fact exhaust his
administrative remedies.” Therefore, because his appeal involves
1
Although Farley was released from prison after he filed
his appeal, the fee filing requirements of the Prison Litigation
Reform Act nevertheless apply because he filed his appeal while
he was in prison. See Gay v. Texas Dep’t. of Corr., 117 F.3d
240, 241 (5th Cir. 1997).
-2-
no “legal points arguable on their merits,” we DENY him IFP
status and DISMISS his appeal. 5th CIR. R. 42.2; Baugh, 117 F.3d
at 202 n.24.
IFP DENIED; APPEAL DISMISSED AS FRIVOLOUS.
-3-