### IN THE UNI TED STATES COURT OFAPPEALS FOR THE FIF TH CIRCUIT

No. 11-30564 Summary Calendar

LESTER GERARD MORAN, Plaintiff-Appellant

v. BOBBY JINDAL, Governor; HUNT CORR E CTIONAL CENTER; DAVID WILLIAMS, Doctor at Angola; JAMES LEBLANC, D.O.C. Secretary; EARL K. LONG H O SPITAL; NATHAN CAIN, Angola Warden; EAST BATON ROUGE PARISH PRISON; JO NAT HAN ROUNDTREE, Angola Medical Director; ORLEANS PARISH PRISON; CHARITY HOSPITAL, Defendants-Appellees

Appeal from the United States District Court for the Middle District of Louisiana USDC No. 3:11-CV-328

Before BENAVIDES, STEWART, and CLEMENT, Circuit Judges. PER CURIAM: * Lester Gerard Moran, Louisiana prisoner # 127405, appeals the district court’s dismissal of his 42 U.S.C. § 1983 complaint, asserting claims of deliberate indifference to his serious medical needs, for failure to exhaust administrative U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Novembe r 15, 20 11 Lyle W . Cayce Clerk

Purs uant to 5 TH C IR

. R. 47.5 , the court hasd ete rm inedthat this op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 TH C IR

. R. 47.5 .4. Case: 11-30564 Document: 00511666162 Page: 1 Date Filed: 11/15/2011No. 11-30564

remedies, pursuant to 42 U.S.C. § 1997e(a). Moran moves this court to proceed in forma pauperis (IFP) on appeal. A movant for leave to proceed I F P on appeal must show that he is a pauper and that the appeal is taken in good faith. Carson v. Polley , 689 F.2d 562, 586 (5th Cir. 1982); 28 U.S.C. § 1915(a)( 3 )

. This court’s inquiry into Moran’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)(citation omitted). Exhaustion of available administrative remedie s i s a threshold requirement for the f

ili n g of a prisoner § 1983 action. 42 U.S.C. § 1997e(a); Porter v. Nussle , 534 U.S. 516, 524-32 (2002). This court reviews a dismissal for failure to exhaust administrative remedies de novo. Days v. Johnson , 322 F.3d 863, 866 (5th Cir. 2003), overruled by implication on other grounds by Jones v. Bock , 549 U.S. 199, 2 1 4

- 1 6 (2007). This court takes “a strict approach to the exhaustion requirement.” Id. If we liberally construe his brief, M oran asserts that the failure to grant him emergency relief on his emergency grievance and the subsequent placement of his grievance on backlog with his other pending grievances should excuse him from the exhaustion requirement or should be considered a rejectio n of his grievance and satisfaction of his duty to exhaust. Moran has not shown that his situation is “one of those rare instances” that would warrant an exception to the exhaustion requirement. See Days , 322 F.3d at 866; Underwood v. Wilson , 151 F.3d 292, 296 (5th Cir. 1998), o v e r r u le d by implication on other grounds by Jo n es , 549 U.S. at 214-16; Thomas v. Prator , 172 F. App’x 602, 603 (5th Cir. 2006). Moran cites no authority for his cont e nti o n th at the placement of his grievance, which was originally filed as an emergency grievance, on backlog due to his own activity in filing numerous grievances should b e considered a rejection of his grievance and a complete exha u s ti o n of his administrative remedies. Further, Moran does not ar gu e that his emergency grievance was improperly
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handled. Moreover, to the extent that Moran’s arguments can be construed as
an a s sertion that requiring him to exhaust his administrative remedies will unduly prejudic e h im, this argument is unavailing as no “undue-prejudice” exception to § 1997e(a) exists. See Clifford v. Gibbs , 298 F.3d 328, 332 (5th Cir. 2002). In light of the foregoing, Moran has not established that an appeal would involve nonfrivolous issues. Thus, his motion for IFP is DENIED; his motion for

co u n s e l is DENIED; and his appeal is DISMISSED as frivolous. See 5 T H C I R
. R. 42.2; Howard , 707 F.2d at 220.

3 Case: 11-30564 Document: 00511666162 Page: 3 Date Filed: 11/15/2011