Johnson v. Moore

Full title: Kenneth JOHNSON, Plaintiff-Appellant v. Connie MOORE, Warden; Tom Desport…

Court: United States Court of Appeals, Fifth Circuit

Date published: Mar 20, 2009

316 F. App'x 347 (5th Cir. 2009)

Opinion

No. 08-30122 Summary Calendar.

March 20, 2009.

Kenneth Johnson, Angola, LA, pro se.

Babatunde Mobolade Anima-Shaun, Office of the Attorney General for the State of Louisiana, Baton Rouge, LA, for Defendants-Appellees.

Appeal from the United States District Court for the Middle District of Louisiana, USDC No. 3:07-CV-49.

Before SMITH, STEWART and SOUTHWICK, Circuit Judges.

PER CURIAM:[fn*] [fn*] Pursuant to 5TH Cm. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

Kenneth Johnson appeals the dismissal of his 42 U.S.C. § 1983 complaint. The district court dismissed Johnson's suit because he had failed to exhaust his administrative remedies. The district court also certified that Johnson's appeal was not taken in good faith. Pursuant to Bough v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997), Johnson challenges the district court's certification decision and requests that this court grant him authorization to proceed IFP on appeal.

The Prison Litigation Reform Act (PLRA) imposes specific filing requirements on prisoners who seek to file civil actions regarding prison conditions; one such requirement is that administrative remedies first be exhausted. See Porter v. Nussle, 534 U.S. 516, 532, 122 S.Ct. 983, 152 L.Ed.2i 12 (2002); 42 U.S.C. § 1997e. Section 1997e(a) specifically provides that "[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." § 1997e(a); see also Woodford v. Ngo, 548 U.S. 81, 85, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006) (observing that exhaustion of all administrative remedies is mandatory). When challenged by the defendants' motion for summary judgment, Johnson did not dispute the defendants' evidence that he had not complied with prison procedure and thus had not exhausted his administrative remedies. Consequently, summary judgment in the defendants' favor was proper. See FED R.CIV. P. 56(C).

Johnson fails to demonstrate that he has a nonfrivolous issue that this court may consider on appeal. See Baugh, 117 F.3d at 202. Consequently, his motion to proceed IFP on appeal is denied, and this appeal is dismissed as frivolous. See 5TH Cm. R. 42.2; Baugh, 117 F.3d at 202 n. 24.

IFP MOTION DENIED; APPEAL DISMISSED AS FRIVOLOUS.