* 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this opinion should not be published and is not precedent except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

August 16, 2005

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 04-11061

Conference Calendar

 

MICHAEL LAFRANCE CRAWFORD,

Plaintiff-Appellant,

versus

JAY LABRIE,

Defendant-Appellee.

--------------------

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 7:03-CV-145

--------------------

Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges. 

PER CURIAM:*

Michael LaFrance Crawford, Texas prisoner # 321616, appeals

the district court’s dismissal of his 42 U.S.C. § 1983 action for

failure to exhaust administrative remedies. Crawford has filed a

motion to proceed in forma pauperis (IFP) on appeal, challenging

the district court’s certification that his appeal was not taken

in good faith pursuant to Baugh v. Taylor, 117 F.3d 197, 199-202

(5th Cir. 1997). He has also filed a motion for appointment of

counsel, which is DENIED.
No. 04-11061

-2-

Crawford argues that the district court erred in dismissing

his 42 U.S.C. § 1983 action for failure to exhaust administrative

remedies. Citing Rocky v. Vittorie, 813 F.2d 734, 736-37 (5th

Cir. 1987), Crawford contends that he made a good faith effort to

meet the exhaustion requirement, that the district court invoked

the exhaustion requirement without considering the interests of

justice, and that the administrative procedures must be certified

to be in compliance with statutorily defined minimum standards. 

He contends that the district court should have given

consideration to his good faith attempt to exhaust administrative

remedies.

“No action shall be brought with respect to prison

conditions under section 1983 of this title, or any other Federal

law, by a prisoner confined in any jail, prison, or other

correctional facility until such administrative remedies as are

available are exhausted.” 42 U.S.C. § 1997e(a). The 42 U.S.C. 

§ 1997e(a) exhaustion requirement is “mandatory, ‘irrespective of

the forms of relief sought and offered through administrative

avenues.’” Days v. Johnson, 322 F.3d 863, 866 (5th Cir. 2003)

(citing Booth v. Churner, 532 U.S. 731, 739, 741 n.6 (2001)). 

This court reviews a dismissal under 42 U.S.C. § 1997e(a) de

novo. Days, 322 F.3d at 866.

Crawford’s arguments and citation to Rocky v. Vittorie are

based on the law as it existed prior to the enactment of the

Prison Litigation Reform Act (PLRA). Under the post-PLRA version
No. 04-11061

-3-

of 42 U.S.C. § 1997e, the district court is no longer required to

determine whether a prisoner has pursued his administrative

remedies in good faith. Underwood v. Wilson, 151 F.3d 292, 294

(5th Cir. 1998). Crawford’s argument that the district court

erred in failing to make such a determination lacks an arguable

basis in law. Id.

The district court’s certification that Crawford’s appeal is

not taken in good faith is upheld, Crawford’s motion for IFP is

DENIED, and this appeal is DISMISSED AS FRIVOLOUS. See Baugh,

117 F.3d at 202 & n.24; 5TH CIR. R. 42.2.

Crawford is hereby informed that 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, 387 (5th Cir.

1996) (“[D]ismissals as frivolous in the district courts or the

court of appeals count [as strikes] for the purposes of

[28 U.S.C. § 1915(g)].”). We caution Crawford that once he

accumulates three strikes, he may not 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 28 U.S.C. § 1915(g).

IFP AND APPOINTMENT OF COUNSEL DENIED; APPEAL DISMISSED AS

FRIVOLOUS; SANCTION WARNING ISSUED.