Robinson v. Wheeler, 338 F. App'x 437

Robinson v. Wheeler

338 F. App'x 437

5th Cir.

2009

Check Treatment

Docket

Arthur Ray ROBINSON, Plaintiff-Appellant v. Edgar Tommy WHEELER; Burl Cain, Warden, Louisiana State Penitentiary; Assistant Warden Donald Davis; Colonel Joseph Lamartinere; Colonel Kevin Benjamin, Defendants-Appellees.

No. 08-31025

United States Court of Appeals, Fifth Circuit.

July 24, 2009.

437

215, 220 (5th Cir.1983). Accordingly, Buras‘s motion for IFP is denied, and his appeal is dismissed. See Baugh, 117 F.3d at 202 & n. 24; 5TH CIR. R. 42.2.

The district court‘s dismissal of Buras‘s complaint and the instant dismissal of his appeal count as two strikes for the purposes of 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir.1996). Buras is cautioned that if he accumulates three strikes he will not be able to proceed IFP in any civil action or appeal filed while he is incarcerated or detained in any facility unless he is under imminent danger of serious physical injury. See § 1915(g).

IFP DENIED; APPEAL DISMISSED; SANCTION WARNING ISSUED.

Arthur R. Robinson, Angola, LA, pro se.

Babatunde Mobolade Anima-Shaun, Office of the Attorney General for the State of Louisiana, Baton Rouge, LA, for Defendants-Appellees.

Before KING, BARKSDALE, and GARZA, Circuit Judges.

PER CURIAM:^*

Arthur Ray Robinson, Louisiana prisoner # 425796, proceeding pro se and in forma pauperis, filed a complaint under 42 U.S.C. § 1983, claiming prison officials violated his rights by: requiring him to perform tasks that were inconsistent with his medical restrictions; and failing to provide adequate medical treatment. Defendants moved for summary judgment, contending Robinson had failed to exhaust his administrative remedies. The district court found: Robinson‘s step one grievance had been rejected because it presented multiple claims; and he had not resubmitted the individual claims in proper form. (The form rejecting Robinson‘s step one grievance specifically advised him he could resubmit his grievance in the proper form.) Accordingly, the district court: determined Robinson had not exhausted his administrative remedies for the individual claims he sought to present in this action; granted summary judgment; and dismissed the complaint.

A summary judgment is reviewed de novo. E.g., Hernandez v. Velasquez, 522 F.3d 556, 560 (5th Cir.2008). Such judgment is proper if “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law“. FED.R.CIV.P. 56(c).

Under the Prison Litigation Reform Act, exhaustion of available administrative remedies is a threshold requirement for filing a prisoner § 1983 action. 42 U.S.C. § 1997e(a); Porter v. Nussle, 534 U.S. 516, 523-32, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002). Robinson contends the district court erred in granting summary judgment because there were disputed issues of fact. Although there may be such issues concerning the merits of his claims, he has shown no such dispute regarding failure to exhaust his administrative remedies for those claims.

Robinson also maintains he is not required to exhaust his administrative remedies because he seeks only monetary damages. Pursuant to 42 U.S.C. § 1997e(a), exhaustion is required for actions seeking monetary damages, even if they are not available in the prison grievance proceeding. Porter, 534 U.S. at 524, 122 S.Ct. 983.

AFFIRMED.

Notes

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.