     Case: 13-50396      Document: 00512523042         Page: 1    Date Filed: 02/05/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fifth Circuit

                                    No. 13-50396                                  FILED
                                  Summary Calendar                          February 5, 2014
                                                                             Lyle W. Cayce
                                                                                  Clerk
DAVID M. CONKLIN,

                                                 Plaintiff-Appellant

v.

D. RANDOLPH, Law Librarian,

                                                 Defendant-Appellee


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 1:12-CV-867


Before WIENER, OWEN, and HAYNES, Circuit Judges.
PER CURIAM: *
       Plaintiff-Appellant David M. Conklin, Texas prisoner # 1789361, 1 filed a
42 U.S.C. § 1983 complaint against D. Randolph, the Law Librarian and Access
to Courts Supervisor at the Travis County Jail, alleging that she filed a false
disciplinary charge against him in retaliation for his use of the law library in
filing grievances and lawsuits. Conklin sought declaratory relief, punitive


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.

       1 Conklin has identified two additional Texas prisoner identification numbers related
to him, # 1732987 and # 01117195.
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                                 No. 13-50396

damages, and an order compelling Randolph to hire an attorney to defend the
suit at her own expense.     The district court dismissed Conklin’s § 1983
complaint for failure to exhaust administrative remedies and as frivolous and
malicious. On reconsideration, the district court ruled that the dismissal was
appropriate in light of Conklin’s failure to exhaust his administrative
remedies.
      On appeal, Conklin argues that the district court erroneously dismissed
his case because the exhaustion requirement set forth in the Prison Litigation
Reform Act (PLRA) should not be applied to his case. Alternatively, he argues
that he could not exhaust his administrative remedies prior to his release from
the Travis County Jail because prison officials were taking too long to respond
to his grievances. He further contends that exhaustion would have been futile
once he was released from the Travis County Jail.
      Conklin also asserts, for the first time on appeal, that the PLRA
exhaustion requirement is unconstitutional and that the district court erred
by rejecting his claims without allowing him the opportunity to develop those
claims further. As he raises these additional contentions for the first time on
appeal, we will not consider them. See Leverette v. Louisville Ladder Co., 183
F.3d 339, 342 (5th Cir. 1999).
      The record reflects that Conklin is no longer confined at the Travis
County Jail; he lists his current address as the Harris County Jail. If not
raised by the parties, we are obligated to raise the issue of mootness sua
sponte. Bailey v. Southerland, 821 F.2d 277, 278 (5th Cir. 1987). In his
complaint, Conklin sought declaratory relief as well as monetary damages.
Conklin’s claim for declaratory relief is mooted by his release from the Travis
County Jail; however, his release did not moot his claim for damages. See
Board of Pardons v. Allen, 482 U.S. 369, 371 n.1 (1987).



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                                  No. 13-50396

      We review de novo a dismissal for failure to exhaust administrative
remedies. Powe v. Ennis, 177 F.3d 393, 394 (5th Cir. 1999). Under the PLRA,
prisoners must properly exhaust “such administrative remedies as are
available” prior to filing a § 1983 action concerning prison conditions. 42
U.S.C. § 1997e(a); Jones v. Bock, 549 U.S. 199, 218 (2007).             “Pre-filing
exhaustion is mandatory,” and “[d]istrict courts have no discretion to excuse a
prisoner’s failure to properly exhaust the prison grievance process before filing
their complaint.” Gonzalez v. Seal, 702 F.3d 785, 788 (5th Cir. 2012).
      In Texas, prison grievances involve a two-step process. Moussazadeh v.
Texas Dep’t of Criminal Justice, 703 F.3d 781, 788 (5th Cir. 2012). To properly
exhaust, the inmate must “pursue the grievance remedy to conclusion.” Wright
v. Hollingsworth, 260 F.3d 357, 358 (5th Cir. 2001).           The district court
determined sua sponte that Conklin failed to exhaust his administrative
remedies properly because he filed suit before he received a response to his
Step I grievance. Although Conklin contends that the PLRA should not apply,
he does so in reliance on state law provisions unrelated to the filing of a federal
civil rights complaint. Thus, his argument is unavailing.
      As Conklin instituted his § 1983 complaint five days after the
disciplinary charge that was the subject of his § 1983 complaint was filed
against him, the district court did not err in holding that the lack of exhaustion
was readily apparent from the face of the complaint. See Carbe v. Lappin, 492
F.3d 325, 328 (5th Cir. 2007). Therefore, Conklin has not shown that the
district court erred by dismissing his § 1983 complaint for failing to exhaust
his administrative remedies. See Powe, 177 F.3d at 394.
      Conklin is subject to the bar set forth in 28 U.S.C. § 1915(g). We also
warn Conklin that frivolous, repetitive, or otherwise abusive filings will invite
the imposition of sanctions, such as dismissal, monetary penalties, and



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                                  No. 13-50396

restrictions on his ability to file pleadings in this court and any court subject
to this court’s jurisdiction.   Conklin is further warned that, to avoid the
imposition of sanctions, he should review any other appeals and actions that
he has pending and move to dismiss any that are frivolous.
      AFFIRMED; SANCTION WARNING ISSUED.




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