IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-60556

Summary Calendar

TOMMY WHITE, SR.,

Plaintiff-Appellant

v.

CHRISTOPHER B. EPPS, COMMISSIONER, MISSISSIPPI DEPARTMENT OF

CORRECTIONS; RON KING, Superintendent, South Mississippi Correctional

Institution-Two; DR. RON WOODALL; NURSE HAM; WEXFORD HEALTH;

NURSE APRIL MEGS,

Defendants-Appellees

Appeal from the United States District Court

for the Southern District of Mississippi

USDC No. 2:09-CV-171

Before JOLLY, GARZA, and STEWART, Circuit Judges.

PER CURIAM:

*

Tommy White, Sr., Mississippi prisoner # M1572, proceeding pro se and

in forma pauperis (IFP), filed in the district court a civil rights complaint

alleging that prison officials, the prison medical unit, and prison medical

personnel deprived him of adequate medical care by failing to refill his

prescription for Naproxen. After the defendants asserted nonexhaustion, the

United States Court of Appeals

Fifth Circuit

F I L E D

November 29, 2010

Lyle W. Cayce

Clerk

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.

Case: 10-60556 Document: 00511304920 Page: 1 Date Filed: 11/29/2010
No. 10-60556

district court dismissed White’s complaint for failure to exhaust administrative

remedies pursuant to 42 U.S.C. § 1997e(a). White now moves for leave to

proceed IFP on appeal following the district court’s order denying IFP and

certifying that his appeal is not taken in good faith.

White argues that the district court erred by failing to grant him a

continuance to meet the exhaustion requirement or to construe his IFP motion

as a motion to reopen. Those claims lack legal support. He also contends that

the district court should have granted his IFP motion because he is indigent, he

was granted IFP status to proceed in district court, and justice should not be

denied due to his poverty. Because White has not shown that the district court

erred in holding that he failed to exhaust his administrative remedies as to his

claim, those arguments fail to show that the district court erred by certifying

that his appeal is not taken in good faith. See Howard v. King, 707 F.2d 215, 220

(5th Cir. 1983).

White also argues that the district court erred in dismissing his complaint

with prejudice. This issue “involves legal points arguable on their merits (and

therefore not frivolous).” Id. (internal quotation marks and citation omitted).

Because White’s appeal is not entirely frivolous, White is entitled to proceed IFP

on appeal, and his motion for IFP is granted. We may, however, address the

merits of White’s claim at the same time we resolve the IFP issue if it is

expedient. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).

A dismissal without prejudice would have been appropriate in this case.

See Wright v. Hollingsworth, 260 F.3d 357, 359 (5th Cir. 2001). Accordingly, the

judgment is affirmed as modified to reflect a dismissal without prejudice of

White’s complaint.

IFP GRANTED; AFFIRMED AS MODIFIED.

2

Case: 10-60556 Document: 00511304920 Page: 2 Date Filed: 11/29/2010