Irvine v. Toney, et al

* 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this opinion should not be published and is not precedent except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
F I L E D
April 20, 2005
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-11225
Conference Calendar
TONY IRVINE,
Plaintiff-Appellant,
versus
JOE FERNALD; ET AL.,
Defendants,
BRUCE TONEY; NFN WILLIAMS,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 2:04-CV-167
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Before JONES, SMITH, and PRADO, Circuit Judges.
PER CURIAM:*
Tony Irvine, Texas prisoner No. 1122042, appeals the
district court’s dismissal of his pro se and in forma pauperis
civil rights complaint for failure to exhaust prison
administrative remedies as required by 42 U.S.C. § 1997e(a).
Irvine does not dispute that he has failed to comply with the
requirements of 42 U.S.C. § 1997e(a), but he argues that the

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No. 04-11225
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dismissal of his complaint with prejudice for purposes of
proceeding in forma pauperis violates his right of access to the
courts. Irvine also challenges the district court’s decision to
sever and transfer his claims against defendants employed at the
Texas Department of Criminal Justice Wynne Unit to the Southern
District of Texas, which is where those claims arose.
We find no error in the dismissal of claims for failure to
exhaust prison administrative remedies. Porter v. Nussle, 534
U.S. 516, 532 (2002); Booth v. Churner, 532 U.S. 731, 741 (2001).
The dismissal will have no effect on Irvine’s ability to bring a
paid complaint raising the same allegations. Underwood v.
Wilson, 151 F.3d 292, 296 (5th Cir. 1998). The decision to sever
and transfer certain of Irvine’s claims was within the district
court’s broad discretion. Mills v. Beech Aircraft Corp., 886
F.2d 758, 761 (5th Cir. 1989); Williams v. Hoyt, 556 F.2d 1336,
1341 (5th Cir. 1977).
AFFIRMED.

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