Case: 21-30610 Document: 00516328982 Page: 1 Date Filed: 05/23/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
May 23, 2022
No. 21-30610
Lyle W. Cayce
Summary Calendar Clerk
Edward Simmons,
Plaintiff—Appellant,
versus
James LeBlanc, Secretary, in his individual and official capacity; Todd
Barrere, Warden, in his individual and official capacity; Thomas,
Colonel, in his individual and official capacity; Lieutenant Colonel
Johnson, in his individual and official capacity; Unknown Verrett,
Major, in his individual and official capacity; Lance, Major, in his individual
and official capacity; Cobb, Captain, in his individual and official capacity;
Whitaker, Captain, in his individual and official capacity; Harris,
Lieutenant, in his individual and official capacity; Fisher, Lieutenant, in his
individual and official capacity; Jasmain Flugene, Sergeant, in his
individual and official capacity; Butler, Sergeant, in his individual and
official capacity,
Defendants—Appellees.
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:21-CV-378
Case: 21-30610 Document: 00516328982 Page: 2 Date Filed: 05/23/2022
No. 21-30610
Before Jones, Elrod, and Wilson, Circuit Judges.
Per Curiam:*
Edward Simmons, Louisiana prisoner # 103371, seeks leave to proceed
in forma pauperis (IFP) on appeal from the district court’s dismissal without
prejudice of his 42 U.S.C. § 1983 action. The district court found that
Simmons did not properly exhaust his administrative remedies before
commencing his suit as required by 42 U.S.C. § 1997e.
By seeking leave to proceed IFP in this court, Simmons is contesting
the district court’s denial of leave to proceed IFP and its certification that his
appeal is not taken in good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th
Cir. 1997). Our inquiry into an appellant’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) (internal
quotation marks and citation omitted).
Simmons has not raised a nonfrivolous issue as to whether he properly
exhausted his administrative remedies. His grievances, which were rejected
as procedurally improper, did not exhaust his administrative remedies. See
Woodford v. Ngo, 548 U.S. 81, 90 (2006); Cowart v. Erwin, 837 F.3d 444, 451
(5th Cir. 2016). Likewise, there is no indication that his disciplinary appeal,
which is subject to a specialized administrative remedy procedure, resulted
in the exhaustion of his failure-to-protect claim in these circumstances.
Thus, the IFP motion is DENIED, and the appeal is DISMISSED
as frivolous. See Howard, 707 F.2d at 220; 5th Cir. R. 42.2. This dismissal
counts as one strike under 28 U.S.C. § 1915(g). See Coleman v. Tollefson, 575
U.S. 532, 537–38 (2015). Simmons has two previous strikes. See Simmons v.
La. Dep’t of Pub. Safety & Corr., 697 F. App’x 345, 347 (5th Cir. 2017). He
*
Pursuant to 5th Circuit Rule 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 Circuit Rule 47.5.4.
2
Case: 21-30610 Document: 00516328982 Page: 3 Date Filed: 05/23/2022
No. 21-30610
now has three strikes. See Coleman, 575 U.S. at 537. Thus, he is now
BARRED from proceeding IFP in any civil action or appeal filed while he is
incarcerated or detained unless he is under imminent danger of serious
physical injury. See 28 U.S.C. § 1915(g); McGarrah v. Alford, 783 F.3d 584,
585 (5th Cir. 2015) (per curiam).
3