Crawford v. Labrie , 144 F. App'x 424 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 16, 2005
Charles R. Fulbruge III
Clerk
No. 04-11061
Conference Calendar
MICHAEL LAFRANCE CRAWFORD,
Plaintiff-Appellant,
versus
JAY LABRIE,
Defendant-Appellee.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 7:03-CV-145
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Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
Michael LaFrance Crawford, Texas prisoner # 321616, appeals
the district court’s dismissal of his 42 U.S.C. § 1983 action for
failure to exhaust administrative remedies. Crawford has filed a
motion to proceed in forma pauperis (IFP) on appeal, challenging
the district court’s certification that his appeal was not taken
in good faith pursuant to Baugh v. Taylor, 117 F.3d 197, 199-202
(5th Cir. 1997). He has also filed a motion for appointment of
counsel, which is DENIED.
*
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this opinion should not be published and is not precedent except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. 04-11061
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Crawford argues that the district court erred in dismissing
his 42 U.S.C. § 1983 action for failure to exhaust administrative
remedies. Citing Rocky v. Vittorie, 813 F.2d 734, 736-37 (5th
Cir. 1987), Crawford contends that he made a good faith effort to
meet the exhaustion requirement, that the district court invoked
the exhaustion requirement without considering the interests of
justice, and that the administrative procedures must be certified
to be in compliance with statutorily defined minimum standards.
He contends that the district court should have given
consideration to his good faith attempt to exhaust administrative
remedies.
“No 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.” 42 U.S.C. § 1997e(a). The 42 U.S.C.
§ 1997e(a) exhaustion requirement is “mandatory, ‘irrespective of
the forms of relief sought and offered through administrative
avenues.’” Days v. Johnson, 322 F.3d 863, 866 (5th Cir. 2003)
(citing Booth v. Churner, 532 U.S. 731, 739, 741 n.6 (2001)).
This court reviews a dismissal under 42 U.S.C. § 1997e(a) de
novo. Days, 322 F.3d at 866.
Crawford’s arguments and citation to Rocky v. Vittorie are
based on the law as it existed prior to the enactment of the
Prison Litigation Reform Act (PLRA). Under the post-PLRA version
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of 42 U.S.C. § 1997e, the district court is no longer required to
determine whether a prisoner has pursued his administrative
remedies in good faith. Underwood v. Wilson, 151 F.3d 292, 294
(5th Cir. 1998). Crawford’s argument that the district court
erred in failing to make such a determination lacks an arguable
basis in law. Id.
The district court’s certification that Crawford’s appeal is
not taken in good faith is upheld, Crawford’s motion for IFP is
DENIED, and this appeal is DISMISSED AS FRIVOLOUS. See Baugh,
117 F.3d at 202 & n.24; 5TH CIR. R. 42.2.
Crawford is hereby informed that 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, 387 (5th Cir.
1996) (“[D]ismissals as frivolous in the district courts or the
court of appeals count [as strikes] for the purposes of
[28 U.S.C. § 1915(g)].”). We caution Crawford that once he
accumulates three strikes, he may not 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 28 U.S.C. § 1915(g).
IFP AND APPOINTMENT OF COUNSEL DENIED; APPEAL DISMISSED AS
FRIVOLOUS; SANCTION WARNING ISSUED.