Richbourg v. Horton, et al, No. 07-10419 (5th Cir. 2008)
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IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED No. 07-10419 Summary Calendar January 15, 2008 Charles R. Fulbruge III Clerk DANIEL JOSEPH RICHBOURG, JR Plaintiff-Appellant v. DANNY R HORTON, RICHARD E WATHEN; OSCAR E PAUL; MR MCGRATH; G ISENBERG Defendants-Appellees Appeal from the United States District Court for the Northern District of Texas USDC No. 7:06-CV-184 Before REAVLEY, SMITH, and BARKSDALE, Circuit Judges. PER CURIAM:* Daniel Joseph Richbourg, Jr., Texas prisoner # 609149, seeks to proceed in forma pauperis (IFP) on appeal from the district court s dismissal of his 42 U.S.C. § 1983 complaint challenging disciplinary proceedings brought against him as frivolous and his claim of retaliation for failure to exhaust his administrative remedies. * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 07-10419 By moving for leave to proceed IFP, Richbourg is challenging the district court's certification that his appeal was not taken in good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997); 28 U.S.C. § 1915(a)(3); Fed. R. App. P. 24(a)(3). The district court properly dismissed Richbourg s challenge to the disciplinary proceedings brought against him pursuant to Heck v. Humphrey, 512 U.S. 477 (1994). However, the district court s dismissal of Richbourg s claim of retaliation based on his failure to exhaust his administrative remedies was premature because it was not clear from the face of his complaint that Richbourg had not exhausted all remedies available to him. See Jones v. Bock, 127 S. Ct. 910, 921 (2007); Carbe v. Lappin, 492 F.3d 325, 328 (5th Cir. 2007); Holloway v. Gunnell, 685 F.2d 150, 154 (5th Cir. 1982). Thus, the district court erred in certifying that this claim did not raise a nonfrivolous issue for appeal. Richbourg's motion to proceed IFP is GRANTED with respect to his retaliation claim. The district court's judgment and certification decision is AFFIRMED with respect to the challenge to the disciplinary conviction; VACATED with respect to the retaliation claim, and the case is REMANDED for further proceedings with respect to the retaliation claim. 2
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