Richbourg v. Horton , 261 F. App'x 777 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 15, 2008
No. 07-10419
Summary Calendar Charles R. Fulbruge III
Clerk
DANIEL JOSEPH RICHBOURG, JR
Plaintiff-Appellant
v.
DANNY R HORTON, RICHARD E WATHEN; OSCAR E PAUL; MR
MCGRATH; G ISENBERG
Defendants-Appellees
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 7:06-CV-184
Before REAVLEY, SMITH, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Daniel Joseph Richbourg, Jr., Texas prisoner # 609149, seeks to proceed
in forma pauperis (IFP) on appeal from the district court’s dismissal of his 42
U.S.C. § 1983 complaint challenging disciplinary proceedings brought against
him as frivolous and his claim of retaliation for failure to exhaust his
administrative remedies.
*
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should not be published and is not precedent except under the limited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. 07-10419
By moving for leave to proceed IFP, Richbourg is challenging the district
court's certification that his appeal was not taken in good faith. See Baugh v.
Taylor, 117 F.3d 197, 202 (5th Cir. 1997); 28 U.S.C. § 1915(a)(3); Fed. R. App. P.
24(a)(3). The district court properly dismissed Richbourg’s challenge to the
disciplinary proceedings brought against him pursuant to Heck v. Humphrey,
512 U.S. 477 (1994).
However, the district court’s dismissal of Richbourg’s claim of retaliation
based on his failure to exhaust his administrative remedies was premature
because it was not clear from the face of his complaint that Richbourg had not
exhausted all remedies available to him. See Jones v. Bock, 127 S. Ct. 910, 921
(2007); Carbe v. Lappin, 492 F.3d 325, 328 (5th Cir. 2007); Holloway v. Gunnell,
685 F.2d 150, 154 (5th Cir. 1982). Thus, the district court erred in certifying
that this claim did not raise a nonfrivolous issue for appeal.
Richbourg's motion to proceed IFP is GRANTED with respect to his
retaliation claim. The district court's judgment and certification decision is
AFFIRMED with respect to the challenge to the disciplinary conviction;
VACATED with respect to the retaliation claim, and the case is REMANDED for
further proceedings with respect to the retaliation claim.
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