Koon v. Stalder

143 F. App'x 630

• Court: Court of Appeals for the Fifth Circuit
• Decided: September 29, 2005
• Docket: 04-31271
• Status: Unpublished

Opinion

PER CURIAM: *

Walter Koon, Louisiana death row inmate # 351860, appeals the district court’s dismissal of his civil rights suit, filed pursuant to 42 U.S.C. § 1983, for failure to exhaust administrative remedies. Koon’s argument that administrative remedies on the due process and equal protection claims he raised were unavailable to him under Pope v. State, 792 So.2d 713 (La. 2001) , is unavailing as he is challenging the conditions of his confinement. See Ferrington v. Louisiana Dep’t of Corr., 315 F.3d 529, 532 (5th Cir.2002); Peterson v. Tofton, 828 So.2d 160, 163 (La.Ct.App. 2002) . Inasmuch as the prison’s records show that Koon did not exhaust the instant claims, he has failed to exhaust his admin istrative remedies as is required by the Prison Litigation Reform Act (PLRA). 42 U.S.C. § 1997e(a); Ferrington, 315 F.3d at 531.

This appeal is without arguable merit and is thus frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir.1983). Because it is frivolous, it is DISMISSED. See 5th Cir. R. 42.2. Koon now has one strike against him under the PLRA. See 28 U.S.C. § 1915(g); Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir.1996). Koon is CAUTIONED that if he accumulates three strikes, he will no longer be allowed to proceed in forma pauperis 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).

APPEAL DISMISSED AS FRIVOLOUS; SANCTION WARNING ISSUED.

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.