Case: 22-30122     Document: 00516547006         Page: 1     Date Filed: 11/16/2022




              United States Court of Appeals
                   for the Fifth Circuit                             United States Court of Appeals
                                                                              Fifth Circuit

                                                                            FILED
                                  No. 22-30122                      November 16, 2022
                                                                       Lyle W. Cayce
                                                                            Clerk
   Donald Barnes,

                                                           Plaintiff—Appellant,

                                       versus

   Darryl Vannoy, Warden; Peter Lollis, Major; John Maples,
   Major; Shawn Miller, Sergeant,

                                                         Defendants—Appellees.


                  Appeal from the United States District Court
                      for the Middle District of Louisiana
                            USDC No. 3:19-CV-764


   Before Elrod, Graves, and Ho, Circuit Judges.
   Per Curiam:*
          Donald Barnes, Louisiana prisoner # 385417, has moved for leave to
   proceed in forma pauperis (IFP) on appeal from the dismissal without
   prejudice of his 

 complaint. The district court found that
   Barnes did not exhaust his administrative remedies and granted summary


          *
            Pursuant to 5th Circuit Rule 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   opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 22-30122      Document: 00516547006          Page: 2   Date Filed: 11/16/2022




                                    No. 22-30122


   judgment in favor of the defendants. Barnes is contesting the district court’s
   certification that his appeal is not taken in good faith. See Baugh v. Taylor,
   

 (5th Cir. 1997). Our inquiry into an appellant’s good faith
   “is limited to whether the appeal involves legal points arguable on their
   merits (and therefore not frivolous).” Howard v. King, 

 (5th
   Cir. 1983) (internal quotation marks and citation omitted).
          To exhaust, a prisoner must comply with deadlines and procedural
   rules. Woodford v. Ngo, 

 (2006). Nonetheless, prisoners
   must exhaust only available remedies. Ross v. Blake, 

   (2016). Without support, Barnes argues that the rejection of his grievance as
   untimely deprived him of the ability to challenge that determination through
   the second step of the grievance procedure. Barnes effectively concedes that
   he did not proceed to the second step of the prison grievance procedure.
   Accordingly, there is no genuine issue of material fact as to whether he
   exhausted his administrative remedies, and summary judgment was proper.
   See Wilson v. Epps, 

 (5th Cir. 2015).
          Barnes has failed to show that there is a nonfrivolous issue on appeal.
   See Howard, 

. The district court did not err in deciding that
   his appeal was not taken in good faith. See 

. His request to
   proceed IFP is DENIED, and the appeal is DISMISSED as frivolous. See
   Baugh, 

 n.24; 5th Cir. R. 42.2.
          The dismissal of this appeal as frivolous counts as a “strike” under 

(g). See Coleman v. Tollefson, 

 (2015).
   Barnes is WARNED that if he accumulates three strikes, he will not be able
   to 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 § 1915(g).




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