Alexander v. Texas Department Criminal Justice Ramsey II Unit ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 21, 2003
Charles R. Fulbruge III
Clerk
No. 03-40469
Conference Calendar
CHARLES RAY ALEXANDER,
Plaintiff-Appellant,
versus
TEXAS DEPARTMENT CRIMINAL JUSTICE
RAMSEY II UNIT; R. TRINCI, Warden,
D. LORIMER, Assistant Warden;
NFN ROOSEVELT, Mr.,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. G-02-CV-223
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Before KING, Chief Judge, and JOLLY and STEWART, Circuit Judges.
PER CURIAM:*
Charles Ray Alexander (“Alexander”) appeals the district
court’s dismissal without prejudice of his 42 U.S.C. § 1983complaint for failure to exhaust his administrative remedies, as
required by the Prison Litigation Reform Act (“PLRA”), 42 U.S.C.
§ 1997e(a). Alexander has also filed a motion to file his reply
brief out of time. That motion is GRANTED.
*
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that this opinion should not be published and is not precedent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. 03-40469
-2-
In his appellate brief, Alexander does not address the
district court’s conclusion that he failed to exhaust
administrative remedies. Although Alexander raises the issue in
his reply brief, he abandoned the issue, as it was not raised and
argued in his initial appellate brief. Cousin v. Trans Union
Corp., 246 F.3d 359, 373 n.22 (5th Cir. 2001). Failure to
identify an error in the district court’s analysis is the same as
if the appellant had not appealed the judgment. See Brinkmann v.
Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir.
1987). Because Alexander does not contest the district court’s
conclusion that he failed to satisfy the exhaustion requirement
until his reply brief, he has waived the only issue relevant to
his appeal. See Yohey v. Collins, 985 F.2d 222, 225 (5th Cir.
1993) (issues not briefed are deemed abandoned).
Alexander’s appeal is without arguable merit and is thus
frivolous. See Howard v. King, 707 F.2d 215, 220 (5th Cir.
1983). Accordingly, the appeal is DISMISSED. 5TH CIR. R. 42.2.
The dismissal of this appeal counts as a “strike” for purposes of
28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387
(5th Cir. 1996). We caution Alexander that once he accumulates
three strikes, he may not 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).
MOTION GRANTED; APPEAL DISMISSED; SANCTION WARNING ISSUED.