Carlos McGrew v. Steve Brentgetsy , 396 F. App'x 71 ( 2010 )

Case: 10-30416 Document: 00511241326 Page: 1 Date Filed: 09/22/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 22, 2010
No. 10-30416
Summary Calendar Lyle W. Cayce
Clerk
CARLOS A. MCGREW,
Plaintiff-Appellant
v.
STEVE BRENTGETSY; JAMES TILLMAN, Major; C. HONEYCUTT, Colonel;
JOE LEMARTINIERE, Warden,
Defendants - Appellees
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:09-CV-1022
Before JOLLY, GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
Carlos A. McGrew, Louisiana state prisoner # 413135, proceeding pro se,
moves for leave to proceed in forma pauperis (IFP) in an appeal of the district
court’s dismissal without prejudice of his civil rights complaint for failure to
exhaust administrative remedies and from the court’s denial of his motion
seeking a temporary restraining order (TRO) and a preliminary injunction.
McGrew’s IFP motion is a challenge to the district court’s certification that his
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-30416 Document: 00511241326 Page: 2 Date Filed: 09/22/2010
No. 10-30416
appeal is not taken in good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th
Cir. 1997). 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)
(internal quotation marks and citation omitted).
This court lacks jurisdiction over the denial of McGrew’s request for a
TRO. See Faulder v. Johnson, 178 F.3d 741, 742 (5th Cir. 1999). McGrew has
identified no “extraordinary circumstances” warranting a reversal of the district
court’s denial of his motion for a preliminary injunction. See White v. Carlucci,
862 F.2d 1209, 1211 (5th Cir. 1989).
The district court dismissed sua sponte McGrew’s civil rights complaint for
failure to exhaust administrative remedies under 42 U.S.C. § 1997e(a). In Jones
v. Bock, the Supreme Court held that an inmate’s failure to exhaust is an
affirmative defense and that “inmates are not required to specially plead or
demonstrate exhaustion in their complaints.” 549 U.S. 199, 216 (2007). We
have interpreted Jones to allow a district court to “dismiss a case prior to service
on defendants for failure to state a claim, predicated on failure to exhaust, if the
complaint itself makes clear that the prisoner failed to exhaust.” Carbe v.
Lappin, 492 F.3d 325, 328 (5th Cir. 2007) (action under Bivens v. Six Unknown
Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971)). In Carbe,
we stated that a “district court cannot by local rule sidestep Jones by requiring
prisoners to affirmatively plead exhaustion.” 492 F.3d at 328.
The district court’s dismissal of McGrew’s complaint based on his failure
to exhaust administrative remedies was premature because it was not clear from
the face of his complaint that McGrew had failed to exhaust all remedies
available to him. See Jones, 549 U.S. at 216-17; Carbe, 492 F.3d at 328;
Holloway v. Gunnell, 685 F.2d 150, 154 (5th Cir. 1982). Thus, the district court
erred in sua sponte dismissing McGrew’s complaint for failure to exhaust
administrative remedies.
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Case: 10-30416 Document: 00511241326 Page: 3 Date Filed: 09/22/2010
No. 10-30416
McGrew’s motion for IFP is granted. His appeal from the denial of a TRO
is dismissed. The district court’s judgment is affirmed with respect to the denial
of a preliminary injunction. The district court’s judgment dismissing McGrew’s
civil rights complaint for failure to exhaust administrative remedies is vacated
and the case is remanded for further proceedings consistent with this opinion.
IFP GRANTED; APPEAL DISMISSED IN PART and AFFIRMED IN
PART; VACATED and REMANDED.
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