IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-60718

VIRGIL LAMONT JARVIS,

Plaintiff–Appellant,

v.

SHERIFF DAVID ALLISON, Pearl River County Sheriff; JULIA FLOWERS, 

Major/Warden; LISA WAYNE, Lieutenant; CHRIS PENTON, Correctional 

Officer; JOHNNY BELLAMY, Correctional Officer; JOHN DOE, Captain; JIM 

PHARES, Correctional Officer; COREY MATAYA, Captain,

Defendants–Appellees.

Appeal from the United States District Court

for the Southern District of Mississippi

USDC No. 1:17-CV-85

Before HIGGINBOTHAM, SOUTHWICK, and WILLETT, Circuit Judges.

PER CURIAM:*

Virgil Lamont Jarvis, Mississippi prisoner # 115718, seeks authorization

to proceed in forma pauperis (IFP) in an appeal of the magistrate judge’s order 

granting summary judgment and dismissing his 42 U.S.C. § 1983 complaint. 

He also moves for the appointment of counsel.

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

September 4, 2019

Lyle W. Cayce

Clerk

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Jarvis’s motion to proceed IFP on appeal is construed as a challenge to 

the magistrate judge’s certification in writing that his 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). Our inquiry into a litigant’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 citations omitted).

According to Jarvis, the magistrate judge incorrectly characterized his 

complaint and various motions as alleging constitutional violations based on 

“an inmate on inmate assault” while he was a pretrial detainee at the LenoirRowell Criminal Justice Center (LRCJC) in Pearl River County, Mississippi.

He further argues that he was entitled to have the magistrate judge’s ruling 

reviewed by a panel of district judges.

A review of the magistrate judge’s order granting summary judgment

and denying Jarvis’s other motions, however, reveals that the magistrate judge 

correctly understood Jarvis to be complaining about the actions taken against 

him by LRCJC officials following his physical altercation with other inmates. 

Moreover, in his notice of appeal, Jarvis challenged only the order granting 

summary judgment. He did not file an additional or amended notice of appeal 

challenging the denial of his post-judgment motion where he requested an 

“En Banc Hearing” before a panel of district judges. As such, we lack 

jurisdiction to consider any claims related to the denial of Jarvis’s postjudgment motion. See FED. R. APP. P. 4(a)(4)(B)(ii); Taylor v. Johnson, 257 F.3d 

470, 475 (5th Cir. 2001). Jarvis has thus failed to raise a nonfrivolous issue for 

appeal.

Jarvis next complains that the magistrate judge should have granted his 

motion to amend his complaint to allege facts concerning a subsequent 

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altercation with inmates at the LRCJC because that altercation was “a result 

of officers directing inmates to assault [Jarvis] in retaliation for filing suit.” 

Though Jarvis identifies his filing as a motion to amend, it concerns events 

that occurred after the filing of his original complaint. As such, it is properly 

construed as a motion to supplement the complaint rather than a motion to 

amend. See FED. R. CIV. P. 15(d).

Leave to supplement should not be granted where the “transaction, 

occurrence, or event” is unrelated to the original cause of action. See id.; see 

also Burns v. Exxon Corp., 158 F.3d 336, 343 (5th Cir. 1998). As the magistrate 

judge observed, the second attack involved different inmates and occurred 

months after the attack that formed the basis of Jarvis’s initial lawsuit. 

Moreover, Jarvis did not claim, as he does now, that the defendants directed 

the second attack in retaliation for his filing a § 1983 lawsuit. Jarvis has failed 

to present a nonfrivolous issue for appeal with respect to the denial of his 

motion to supplement his complaint.

Jarvis argues that the magistrate judge erred in determining that his 

claims were unexhausted, and he persists with his argument that because 

prison officials failed to respond to his grievance, “exhaustion is deemed 

satisfied.” As the magistrate judge explained, “[w]here a prison fails to respond 

to the prisoner’s grievance at some preliminary step in the grievance process,” 

the prisoner is simply entitled “to move on to the next step in the process.” See

Wilson v. Epps, 776 F.3d 296, 301 (5th Cir. 2015). Jarvis, then, “cannot 

maintain a suit founded on any claim that he presented to the prison in only a 

step-one [Administrative Review Procedure], irrespective of whether the 

prison responded within the time allotted for rendering step-one responses.” 

Id. As such, he has failed to raise a nonfrivolous issue for appeal based on his 

failure to exhaust administrative remedies.

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Finally, Jarvis claims that he is not subject to the Prison Litigation 

Reform Act (PLRA) because, at the time he filed his lawsuit, he was a pretrial 

detainee and not “a prisoner convicted of a crime.” Jarvis is incorrect. A pretrial 

detainee is a “prisoner” for purposes of the PLRA and is subject to the PLRA’s 

exhaustion requirement. See 42 U.S.C. § 1997e(h).

Because Jarvis has failed to raise a nonfrivolous issue for appeal, his IFP 

motion is DENIED. See Howard, 707 F.2d at 220. Additionally, because Jarvis

has failed to show that he will raise a nonfrivolous issue, the appeal is

DISMISSED. See Baugh, 117 F.3d at 202 & n.24; 5TH CIR. R. 42.2. Jarvis’s 

motion for the appointment of counsel is DENIED.

The dismissal of this appeal as frivolous counts as a strike for purposes 

of 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir. 

1996). Jarvis is WARNED 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.

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