Delafosse v. Stalder

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 13, 2006
_____________________
Charles R. Fulbruge III
No. 05-30173 Clerk
Summary Calendar
_____________________

MARK DELAFOSSE,

Plaintiff-Appellant,

versus

RICHARD L. STALDER; BURL CAIN; DARRYL VANNOY; LESLIE DUPONT;
DWAYNE MCFATTER; CATHY FONTENOT; ROGER MITCHELL; ROBERT
TONEY; YUSUF ABDULLAH; ASSISTANT WARDEN DAVID BONNETTE;
JAMIE FELDER; DONALD BARR; CATHY ROBERTS; JOSEPH HEWES;
ROBERT ROWE; JAMES DOUZAT; MARK MILLER,

Defendants-Appellees.

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Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:03-CV-803
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Before JOLLY, DAVIS, and OWEN, Circuit Judges.

PER CURIAM:*

Mark Delafosse, Louisiana prisoner #354829, proceeding pro se,

moves for leave to proceed in forma pauperis (IFP) in an appeal of

the district court’s final judgment that dismissed his 42 U.S.C. §

1983 complaint. Delafosse’s IFP motion is a challenge to the

district’s certification that his appeal is not taken in good

faith. Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).

*
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this opinion should not be published and is not precedent except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.
 Delafosse challenges the district court’s application of the

physical-injury requirement of 42 U.S.C. § 1997e(e) to bar his

First Amendment claim for compensatory damages due to denial of a

religious diet. This court has rejected Delafosse’s argument. See

Geiger v. Jowers, 404 F.3d 371, 374-75 (5th Cir. 2005).

The district court dismissed as moot Delafosse’s claim for

injunctive relief based on the denial of a religious diet, because

Delafosse had been moved to another prison facility. In his IFP

motion and brief, Delafosse notes in his recitation of the

procedural history of his case that he had filed a post-judgment

motion contending that the magistrate judge’s recommendation that

his claims for declaratory and injunctive relief were moot was

based on a mistake of fact.** He does not mention the mootness

determination at any other point in his IFP motion or brief.

Therefore, he has failed to brief this issue and thereby abandoned

it. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993);

Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748

(5th Cir. 1987).

Because Delafosse has not identified a non-frivolous issue for

appeal, his motion for IFP status on appeal is DENIED and the

appeal is DISMISSED as frivolous.

APPEAL DISMISSED; MOTION DENIED.

**
In his post-judgment motion, Delafosse asserted that prior
to the magistrate judge’s issuance of his report and
recommendation, he had been returned to Angola, the prison at which
he had been denied a religious diet.

2