Virgil Jarvis v. David Allison ( 2019 )


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  •      Case: 18-60718      Document: 00515103045         Page: 1    Date Filed: 09/04/2019
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    Fifth Circuit
    No. 18-60718                            FILED
    September 4, 2019
    Lyle W. Cayce
    VIRGIL LAMONT JARVIS,                                                         Clerk
    Plaintiff–Appellant,
    v.
    SHERIFF DAVID ALLISON, Pearl River County Sheriff; JULIA FLOWERS,
    Major/Warden; LISA WAYNE, Lieutenant; CHRIS PENTON, Correctional
    Officer; JOHNNY BELLAMY, Correctional Officer; JOHN DOE, Captain; JIM
    PHARES, Correctional Officer; COREY MATAYA, Captain,
    Defendants–Appellees.
    Appeal from the United States District Court
    for the Southern District of Mississippi
    USDC No. 1:17-CV-85
    Before HIGGINBOTHAM, SOUTHWICK, and WILLETT, Circuit Judges.
    PER CURIAM: *
    Virgil Lamont Jarvis, Mississippi prisoner # 115718, seeks authorization
    to proceed in forma pauperis (IFP) in an appeal of the magistrate judge’s order
    granting summary judgment and dismissing his 42 U.S.C. § 1983 complaint.
    He also moves for the appointment of counsel.
    * 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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 18-60718     Document: 00515103045     Page: 2   Date Filed: 09/04/2019
    No. 18-60718
    Jarvis’s motion to proceed IFP on appeal is construed as a challenge to
    the magistrate judge’s certification in writing that his appeal is not taken in
    good faith. See Baugh v. Taylor, 
    117 F.3d 197
    , 202 (5th Cir. 1997); 28 U.S.C.
    § 1915(a)(3). Our inquiry into a litigant’s 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 citations omitted).
    According to Jarvis, the magistrate judge incorrectly characterized his
    complaint and various motions as alleging constitutional violations based on
    “an inmate on inmate assault” while he was a pretrial detainee at the Lenoir-
    Rowell Criminal Justice Center (LRCJC) in Pearl River County, Mississippi.
    He further argues that he was entitled to have the magistrate judge’s ruling
    reviewed by a panel of district judges.
    A review of the magistrate judge’s order granting summary judgment
    and denying Jarvis’s other motions, however, reveals that the magistrate judge
    correctly understood Jarvis to be complaining about the actions taken against
    him by LRCJC officials following his physical altercation with other inmates.
    Moreover, in his notice of appeal, Jarvis challenged only the order granting
    summary judgment. He did not file an additional or amended notice of appeal
    challenging the denial of his post-judgment motion where he requested an
    “En Banc Hearing” before a panel of district judges. As such, we lack
    jurisdiction to consider any claims related to the denial of Jarvis’s post-
    judgment motion. See FED. R. APP. P. 4(a)(4)(B)(ii); Taylor v. Johnson, 
    257 F.3d 470
    , 475 (5th Cir. 2001). Jarvis has thus failed to raise a nonfrivolous issue for
    appeal.
    Jarvis next complains that the magistrate judge should have granted his
    motion to amend his complaint to allege facts concerning a subsequent
    2
    Case: 18-60718     Document: 00515103045      Page: 3   Date Filed: 09/04/2019
    No. 18-60718
    altercation with inmates at the LRCJC because that altercation was “a result
    of officers directing inmates to assault [Jarvis] in retaliation for filing suit.”
    Though Jarvis identifies his filing as a motion to amend, it concerns events
    that occurred after the filing of his original complaint. As such, it is properly
    construed as a motion to supplement the complaint rather than a motion to
    amend. See FED. R. CIV. P. 15(d).
    Leave to supplement should not be granted where the “transaction,
    occurrence, or event” is unrelated to the original cause of action. See id.; see
    also Burns v. Exxon Corp., 
    158 F.3d 336
    , 343 (5th Cir. 1998). As the magistrate
    judge observed, the second attack involved different inmates and occurred
    months after the attack that formed the basis of Jarvis’s initial lawsuit.
    Moreover, Jarvis did not claim, as he does now, that the defendants directed
    the second attack in retaliation for his filing a § 1983 lawsuit. Jarvis has failed
    to present a nonfrivolous issue for appeal with respect to the denial of his
    motion to supplement his complaint.
    Jarvis argues that the magistrate judge erred in determining that his
    claims were unexhausted, and he persists with his argument that because
    prison officials failed to respond to his grievance, “exhaustion is deemed
    satisfied.” As the magistrate judge explained, “[w]here a prison fails to respond
    to the prisoner’s grievance at some preliminary step in the grievance process,”
    the prisoner is simply entitled “to move on to the next step in the process.” See
    Wilson v. Epps, 
    776 F.3d 296
    , 301 (5th Cir. 2015). Jarvis, then, “cannot
    maintain a suit founded on any claim that he presented to the prison in only a
    step-one [Administrative Review Procedure], irrespective of whether the
    prison responded within the time allotted for rendering step-one responses.”
    
    Id. As such,
    he has failed to raise a nonfrivolous issue for appeal based on his
    failure to exhaust administrative remedies.
    3
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    No. 18-60718
    Finally, Jarvis claims that he is not subject to the Prison Litigation
    Reform Act (PLRA) because, at the time he filed his lawsuit, he was a pretrial
    detainee and not “a prisoner convicted of a crime.” Jarvis is incorrect. A pretrial
    detainee is a “prisoner” for purposes of the PLRA and is subject to the PLRA’s
    exhaustion requirement. See 42 U.S.C. § 1997e(h).
    Because Jarvis has failed to raise a nonfrivolous issue for appeal, his IFP
    motion is DENIED. See 
    Howard, 707 F.2d at 220
    . Additionally, because Jarvis
    has failed to show that he will raise a nonfrivolous issue, the appeal is
    DISMISSED. See 
    Baugh, 117 F.3d at 202
    & n.24; 5TH CIR. R. 42.2. Jarvis’s
    motion for the appointment of counsel is DENIED.
    The dismissal of this appeal as frivolous counts as a strike for purposes
    of 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 
    103 F.3d 383
    , 388 (5th Cir.
    1996). Jarvis is WARNED 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 DENIED; APPEAL DISMISSED; SANCTION WARNING ISSUED.
    4
    

Document Info

Docket Number: 18-60718

Filed Date: 9/4/2019

Precedential Status: Non-Precedential

Modified Date: 9/4/2019