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Monroe v. USA

Court: Court of Appeals for the Fifth Circuit
Date filed: 2000-05-01
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                            No. 99-10345
                                 -1-

               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                           No. 99-10345
                         Summary Calendar



SUE MONROE, also known as
Carolyn Demonbruen Hayes,

                                           Petitioner-Appellant,

versus

UNITED STATES OF AMERICA; BUREAU
OF PRISONS; KATHLEEN HAWK, Director
of Bureau of Prisons; J.D. BOGAN,
Warden Carswell Medical Center,

                                           Respondents-Appellees.

                       --------------------
           Appeal from the United States District Court
                for the Northern District of Texas
                      USDC No. 4:98-CV-308-Y
                       --------------------
                          April 28, 2000

Before HIGGINBOTHAM, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

     Sue Monroe, a federal prisoner (# 02518-424), has filed an

application for leave to proceed in forma pauperis (“IFP”) on

appeal, following the district court’s grant of the defendants’

motion to dismiss her pro se action filed pursuant to 28 U.S.C.

§ 2241 and, according to the district court, Bivens v. Six

Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388

(1971).   By moving to proceed IFP, Monroe is challenging the

     *
        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that this opinion should not be published and is not precedent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. 99-10345
                                -2-

district court’s certification that IFP status should not be

granted on appeal because her appeal is not taken in good faith.

See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997); 28 U.S.C.

§ 1915(a)(3).

     To the extent that Monroe sought injunctive relief for

Bivens-type civil rights claims,** the district court concluded

that Monroe had failed to exhaust administrative remedies with

respect to her conditions-of-confinement claims and as to her

primary claim, which is that prison officials have denied her

adequate medical treatment with respect to the lupus and kidney

disease from which she suffers.    She has also sought

“Compassionate Release” pursuant to Bureau of Prisons (“BOP”)

Program Statement 5050.44 and 18 U.S.C. § 3582(c)(1)(A)(i), but

was turned down by the BOP.    Monroe’s IFP application is not

“directed solely to the trial court’s reasons for the

certification decision.”   See Baugh, 117 F.3d at 203.   She has

abandoned most of her conditions-of-confinement claims by failing

to brief them in her application.    See Yohey v. Collins, 985 F.2d

222, 224-25 (5th Cir. 1993).    She has not remotely shown that the

district court erred in concluding that she had not exhausted

administrative remedies as to the her medical-care claims and

that the BOP did not abuse its discretion in denying

“Compassionate Release.”



     **
        The district court’s characterization of Monroe’s claims
as a Bivens action is questionable. Monroe did not request
damages, and Bivens is a Supreme Court-created cause of action
for damages against a federal actor for a violation of
constitutional rights. Bivens, 403 U.S. at 289.
                           No. 99-10345
                                -3-

     Monroe’s appeal is without arguable merit and is thus

frivolous.   See Baugh, 117 F.3d at 202 n.24 (5th Cir. 1983); 5TH

CIR. R. 42.2.   Accordingly, we uphold the district court’s order

certifying that the appeal is not taken in good faith and denying

Monroe IFP status on appeal, we deny the motion for leave to

appeal IFP, and we DISMISS Monroe’s appeal as frivolous.

     The Government’s motion to dismiss Monroe’s appeal is DENIED

as unnecessary.

     Monroe’s motion for appointment of counsel is DENIED.

     Monroe’s motion for a temporary restraining order or other

injunctive relief is DENIED.