Thomas v. Prator ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 28, 2006
Charles R. Fulbruge III
Clerk
No. 05-30209
Summary Calendar
JOHN A. THOMAS,
Plaintiff-Appellant,
versus
STEVE PRATOR; JOHN SELLS; CADDO CORRECTIONAL CENTER;
LOUISIANA STATE UNIVERSITY MEDICAL CENTER SHREVEPORT;
SERGEANT SEMON; DEPUTY KLINE; DEPUTY EDMONSON; DAVID
REED; LIEUTENANT BRADFORD; SHARON CAMPBELL; J. MARTIN;
KEITH HIGHTOWER; JIM ROBERTS; E.R.T. MCKEEVER; RYAN
DIBLER; DEPUTY JACORBY; LIEUTENANT HARP; JOHN CARTER;
SERGEANT HUGHES; E.R.T. KRAFT; SERGEANT TROUDT; E.R.T.
PACE; M. GAY; DEPUTY DAVIS; DEPUTY MICHELLE; DEPUTY
MIXON; SYLVIA BUSIC, Nurse; J. JACKSON, Nurse,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 5:02-CV-1655
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Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
John A. Thomas, Louisiana prisoner # 177753, moves to
proceed in forma pauperis (IFP) and for appointment of counsel to
appeal the summary judgment dismissal of his 42 U.S.C. § 1983suit without prejudice for failure to exhaust administrative
*
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this opinion should not be published and is not precedent except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. 05-30209
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remedies. By moving for IFP, Thomas is challenging the district
court’s certification that IFP status should not be granted on
appeal because his appeal is not taken in good faith. See Baugh
v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). Thomas argues that
he was not required to exhaust prior to filing his civil rights
suit and, in the alternative, that prison officials impeded his
efforts to utilize the prison grievance system by ignoring his
complaints, thereby excusing his failure to exhaust his
constitutional claims.
Under the Prison Litigation Reform Act (PLRA), Thomas was
required to exhaust his administrative remedies before filing the
instant civil rights suit. 42 U.S.C. § 1997e(a); Wendell v.
Asher, 163 F.3d 887, 890 (5th Cir. 1998). While we have
recognized that the exhaustion requirement may be excused where
administrative remedies are inadequate because prison officials
ignore or interfere with a prisoner’s pursuit of relief, Holloway
v. Gunnell, 685 F.2d 150, 154 (5th Cir. 1982), the evidence does
not support such a conclusion in Thomas’s case. The evidence
instead indicates that Thomas violated the grievance policy by
filing multiple grievances during the period of step-one review
and that his abuse of the procedure resulted in a backlog of
unanswered grievances. As such, the failure to exhaust is not
fairly attributable to an impediment created by prison officials
such that the exhaustion requirement would be excused. Thomas’s
contention that his placement in restrictive housing limited his
No. 05-30209
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access to the law library and to the PLRA, thereby impeding his
ability to exhaust, is belied by evidence that he filed multiple
grievances.
“[N]othing prevents the appellate court from sua sponte
dismissing the case on the merits pursuant to 5TH CIR. R. 42.2
when it is apparent that an appeal would be meritless.” See
Baugh, 117 F.3d at 202 n.24. Thomas has failed to show that his
appeal involves nonfrivolous legal issues, and therefore his
appeal is dismissed.
MOTIONS FOR IFP STATUS AND APPOINTMENT OF COUNSEL DENIED;
APPEAL DISMISSED.