Wiley v. McKellar

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 26, 2006

Charles R. Fulbruge III
No. 05-40235 Clerk
Summary Calendar

WILLIS FLOYD WILEY,

Plaintiff-Appellant,

versus

CARL E. MCKELLAR; NEAL WEBB; MARY BILLUPS;
GUILLERMO DELAROSA; ANDRE WATSON; ET AL.,

Defendants-Appellees.

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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:04-CV-331
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Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

Willis Floyd Wiley, Texas prisoner # 753383, appeals the

district court’s dismissal with prejudice of his 42 U.S.C. § 1983

complaint for failure to exhaust administrative remedies and on

the merits. Wiley does not challenge the district court’s denial

of his exhaust claims on the merits, and he does not challenge

the district court’s dismissal for failure to exhaust other than

his allegations under the Americans with Disabilities Act (ADA).

These claims are thus deemed abandoned. See Brinkmann v. Dallas

County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).

*
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this opinion should not be published and is not precedent except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. 05-40235
-2-

Wiley asserts that he was not required to exhaust

administrative remedies with respect to his ADA claims. Under 42

U.S.C. § 1997e(a), a prisoner must exhaust his administrative

remedies before bringing a civil action challenging prison

conditions. Wiley was thus required to exhaust his

administrative remedies for all his claims, including those

raised under the ADA, since they involved matters of prison life.

See Booth v. Churner, 532 U.S. 731, 739, (2001); see also

Clifford v. Gibbs, 298 F.3d 328, 332 (5th Cir. 2002).

Wiley also contends that he is entitled to relief because

the magistrate judge failed to rule on his motion for a temporary

restraining order in her report and recommendation. He has not

established that he is entitled to relief on this ground. See

FED. R. CIV. P. 65(a), (b); Sunbeam Prods., Inc. v. West Bend Co.,

123 F.3d 246, 250 (5th Cir. 1997).

Consequently, the judgment of the district court is

AFFIRMED. The judgment is, however, MODIFIED to reflect that the

dismissal of Wiley’s unexhausted claims is WITH PREJUDICE for

purposes of proceeding in an in forma pauperis proceeding

pursuant to 28 U.S.C. § 1915(d). See Underwood v. Wilson, 151

F.3d 292, 296 (5th Cir. 1998). Wiley’s motion for appointment of

counsel is DENIED. See Ulmer v. Chancellor, 691 F.2d 209, 212

(5th Cir. 1982).