     Case: 11-30564     Document: 00511666162         Page: 1     Date Filed: 11/15/2011




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

                                                                            FILED
                                                                        November 15, 2011
                                     No. 11-30564
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

LESTER GERARD MORAN,

                                                  Plaintiff-Appellant

v.

BOBBY JINDAL, Governor; HUNT CORRECTIONAL CENTER; DAVID
WILLIAMS, Doctor at Angola; JAMES LEBLANC, D.O.C. Secretary; EARL K.
LONG HOSPITAL; NATHAN CAIN, Angola Warden; EAST BATON ROUGE
PARISH PRISON; JONATHAN ROUNDTREE, Angola Medical Director;
ORLEANS PARISH PRISON; CHARITY HOSPITAL,

                                                  Defendants-Appellees


                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:11-CV-328


Before BENAVIDES, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
        Lester Gerard Moran, Louisiana prisoner # 127405, appeals the district
court’s dismissal of his 42 U.S.C. § 1983 complaint, asserting claims of deliberate
indifference to his serious medical needs, for failure to exhaust administrative




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                  No. 11-30564

remedies, pursuant to 42 U.S.C. § 1997e(a). Moran moves this court to proceed
in forma pauperis (IFP) on appeal.
      A movant for leave to proceed IFP on appeal must show that he is a
pauper and that the appeal is taken in good faith. Carson v. Polley, 689 F.2d 562,
586 (5th Cir. 1982); 28 U.S.C. § 1915(a)(3). This court’s inquiry into Moran’s
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)(citation omitted).
      Exhaustion of available administrative remedies is a threshold
requirement for the filing of a prisoner § 1983 action. 42 U.S.C. § 1997e(a);
Porter v. Nussle, 534 U.S. 516, 524-32 (2002). This court reviews a dismissal for
failure to exhaust administrative remedies de novo. Days v. Johnson, 322 F.3d
863, 866 (5th Cir. 2003), overruled by implication on other grounds by Jones v.
Bock, 549 U.S. 199, 214-16 (2007). This court takes “a strict approach to the
exhaustion requirement.” Id.
      If we liberally construe his brief, Moran asserts that the failure to grant
him emergency relief on his emergency grievance and the subsequent placement
of his grievance on backlog with his other pending grievances should excuse him
from the exhaustion requirement or should be considered a rejection of his
grievance and satisfaction of his duty to exhaust. Moran has not shown that his
situation is “one of those rare instances” that would warrant an exception to the
exhaustion requirement. See Days, 322 F.3d at 866; Underwood v. Wilson, 151
F.3d 292, 296 (5th Cir. 1998), overruled by implication on other grounds by
Jones, 549 U.S. at 214-16; Thomas v. Prator, 172 F. App’x 602, 603 (5th Cir.
2006). Moran cites no authority for his contention that the placement of his
grievance, which was originally filed as an emergency grievance, on backlog due
to his own activity in filing numerous grievances should be considered a rejection
of his grievance and a complete exhaustion of his administrative remedies.
Further, Moran does not argue that his emergency grievance was improperly

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                                  No. 11-30564

handled. Moreover, to the extent that Moran’s arguments can be construed as
an assertion that requiring him to exhaust his administrative remedies will
unduly prejudice him, this argument is unavailing as no “undue-prejudice”
exception to § 1997e(a) exists. See Clifford v. Gibbs, 298 F.3d 328, 332 (5th Cir.
2002).
      In light of the foregoing, Moran has not established that an appeal would
involve nonfrivolous issues. Thus, his motion for IFP is DENIED; his motion for
counsel is DENIED; and his appeal is DISMISSED as frivolous. See 5TH CIR.
R. 42.2; Howard, 707 F.2d at 220.




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