Rauch v. Castro ( 2002 )


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  •                IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    No. 02-10541
    Conference Calendar
    WARREN G. RAUCH,
    Plaintiff-Appellant,
    versus
    RAYNALDO CASTRO; MARYANN MUNSELL; HUGH BRYAN;
    TOMMY E. PARKS; VICTOR BROOKS,
    Defendants-Appellees.
    --------------------
    Appeal from the United States District Court
    for the Northern District of Texas
    USDC No. 2:02-CV-84
    --------------------
    December 12, 2002
    Before JOLLY, JONES, and WIENER, Circuit Judges.
    PER CURIAM:*
    Warren G. Rauch, Texas prisoner # 736714 (“Rauch”), appeals
    the dismissal of his pro se and in forma pauperis ("IFP") lawsuit
    filed pursuant to 42 U.S.C. § 1983.   The district court dismissed
    the suit as frivolous because Rauch, by his own admission, had
    failed to exhaust the prison grievance process prior to filing
    suit, as required by 42 U.S.C. § 1997e, and therefore the suit
    sought relief to which Rauch was not entitled.
    *
    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    that this opinion should not be published and is not precedent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. 02-10541
    -2-
    The district court did not err in dismissing the complaint
    as frivolous for failure to exhaust administrative remedies.     See
    Underwood v. Wilson, 
    151 F.3d 292
    , 294 (5th Cir. 1997).    The
    district court correctly ordered that dismissal was with
    prejudice to refiling with IFP status.    See 
    Underwood, 151 F.3d at 296
    .
    This appeal is without arguable merit and is thus frivolous.
    See Howard v. King, 
    707 F.2d 215
    , 219-20 (5th Cir. 1983).
    Because the appeal is frivolous, it is DISMISSED.    See 5TH CIR.
    R. 42.2.
    The district court’s dismissal as frivolous and this court’s
    dismissal as frivolous count as two strikes for purposes of the
    three-strikes provision.   See 28 U.S.C. § 1915(g); see Adepegba
    v. Hammons, 
    103 F.3d 383
    , 388 (5th Cir. 1996).    Rauch is WARNED
    that should he accumulate three strikes he will be unable to
    proceed IFP in any civil action or appeal 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; SANCTION WARNING ISSUED.
    

Document Info

Docket Number: 02-10541

Filed Date: 12/13/2002

Precedential Status: Non-Precedential

Modified Date: 4/17/2021