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Autry Randall, Jr. v. C. Nash , 505 F. App'x 372 ( 2013 )


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  •      Case: 12-40532       Document: 00512101062         Page: 1     Date Filed: 01/04/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT  United States Court of Appeals
Fifth Circuit
FILED
January 4, 2013
No. 12-40532
Summary Calendar                        Lyle W. Cayce
Clerk
AUTRY EUGENE RANDALL, JR.,
Plaintiff-Appellant
v.
DR. C. NASH, Bowie County Correctional Center (under contract with
Community Education Centers, Texarkana, Texas); NURSE S. MICHAELS,
Medical Department Supervisor, Bowie County Correctional Center (under
contract with Community Education Centers, Texarkana, Texas); DESIREE
PENNINGTON, Medical Records Clerk, Bowie County Correctional Center
(under contract with Community Education Centers, Texarkana, Texas),
Defendants-Appellees
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 5:10-CV-241
Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Autry Eugene Randall, Jr., formerly a pretrial detainee in the Bowie
County Correctional Center/Bi-State Detention Center and currently Texas state
prisoner # 1676607, has filed a motion for leave to proceed in forma pauperis
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Case: 12-40532     Document: 00512101062      Page: 2   Date Filed: 01/04/2013
No. 12-40532
(“IFP”) on appeal from the district court’s judgment granting the defendants’
motions for summary judgment and dismissing Randall’s
    42 U.S.C. § 1983
    action. The district court denied Randall’s IFP motion, certifying, pursuant to
    28 U.S.C. § 1915
    (a)(3) and Federal Rule of Appellate Procedure 24(a)(3), that the
appeal was not taken in good faith.
By moving for leave to proceed IFP, Randall is challenging the district
court’s certification decision. Baugh v. Taylor,
    117 F.3d 197
    , 202 (5th Cir. 1997).
To obtain permission to proceed IFP, Randall must show that he is a pauper and
that he will present a nonfrivolous appellate issue. Carson v. Polley,
    689 F.2d 562
    , 586 (5th Cir. 1982).
Randall argues that, prior to filing his § 1983 action, he was unable to
exhaust his administrative remedies due to fear, threats, and constant
harassment. The exhaustion requirement is mandatory, and unexhausted
claims may not be brought in court. Jones v. Bock,
    549 U.S. 199
    , 211 (2007).
There is no futility exception to the exhaustion requirement. See Booth v.
Churner,
    532 U.S. 731
    , 741 n.6 (2001). Moreover, the summary judgment
evidence presented below demonstrates that Randall submitted three Step-1
grievances and a Step-2 grievance on an unrelated issue, thus refuting his
reasons for failing to exhaust.
Next, Randall argues for the first time that he could not exhaust his
administrative remedies because grievance forms were impossible to obtain
when he was in solitary confinement and that the grievance forms he managed
to submit were obtained from other inmates. This court does not generally
consider arguments raised for the first time on appeal, and we decline to do so
here. See Jennings v. Owens,
    602 F.3d 652
    , 657 n.7 (5th Cir. 2010); Leverette v.
Louisville Ladder Co.,
    183 F.3d 339
    , 342 (5th Cir. 1999).
Finally, Randall raises arguments regarding the merits of his claim. We
need not consider these arguments because he did not exhaust his
administrative remedies.
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Case: 12-40532    Document: 00512101062     Page: 3   Date Filed: 01/04/2013
No. 12-40532
Randall has not established that he will raise a nonfrivolous appellate
issue. See Carson,
    689 F.2d at 586
    . Accordingly, we deny the motion to proceed
IFP on appeal, and we dismiss his appeal as frivolous. See Baugh,
    117 F.3d at
    202 n.24; 5TH CIR. R. 42.2. The dismissal of Randall’s 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). Randall is cautioned that if he accumulates three strikes
under § 1915(g), he will not be allowed 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).
IFP MOTION DENIED; APPEAL DISMISSED; SANCTION WARNING
ISSUED.
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