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Bowers v. Boykin ( 2003 )


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  •                                                        United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT                  April 22, 2003
Charles R. Fulbruge III
Clerk
No. 02-51099
Conference Calendar
LLOYD GEORGE BOWERS,
Plaintiff-Appellant,
versus
BENNY BOYKIN; KENNETH HULLUM; CEDRIC CADDELL,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. W-02-CV-214
--------------------
Before DAVIS, BARKSDALE, and STEWART, Circuit Judges.
PER CURIAM:*
Lloyd George Bowers, Texas prisoner # 1019169, seeks to
appeal in forma pauperis (IFP) the dismissal of his
    42 U.S.C. § 1983
     complaint for failure to exhaust administrative remedies.
He argues that the letter he wrote to internal affairs regarding
his assault was tantamount to filing Step 1 and Step 2 grievances
for exhaustion purposes.   The merits of Bowers’s appeal are
“inextricably intertwined with the certification decision,” and,
therefore, we also entertain the issue whether the appeal should
*
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that this opinion should not be published and is not precedent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. 02-51099
-2-
be dismissed.     See Baugh v. Taylor,
    117 F.3d 197
    , 202 (5th Cir.
1997).
Bowers conceded that he did not file either a Step 1 or Step
2 grievance.     See Wendell v. Asher,
    162 F.3d 887
    , 891 (5th Cir.
1998).   If it is assumed arguendo that Bowers could also exhaust
his administrative remedies by opening a case with the internal
affairs division, the Spears2 testimony nevertheless confirmed
that the investigation was incomplete and that his grievance was
thus unresolved at the administrative level.     The magistrate
judge therefore did not err in determining that he had failed to
exhaust administrative remedies and in dismissing his civil
rights complaint.     See 42 U.S.C. § 1997e(a); Richardson v.
Spurlock,
    260 F.3d 495
    , 499 (5th Cir. 2001).
Bowers’s allegations of retaliation are raised for the first
time on appeal and are therefore not considered.     See Leverette
v. Louisville Ladder Co.,
    183 F.3d 339
    , 342 (5th Cir. 1999).
Bowers has not established that an appeal would not involve
nonfrivolous issues.    We therefore deny his motions for IFP
status and for appointment of counsel and dismiss the appeal as
frivolous in the interest of judicial efficiency.     See 5TH CIR. R.
42.2; Howard v. King,
    707 F.2d 215
    , 220 (5th Cir. 1983).
Bowers is cautioned that the dismissal of this appeal as
frivolous counts as a “strike” for purposes of
    28 U.S.C. § 1915
    (g).     See Adepegba v. Hammons,
    103 F.3d 383
    , 385-87 (5th
2
Spears v. McCotter,
    766 F.2d 179
    , 180 (5th Cir. 1985).
No. 02-51099
-3-
Cir. 1996).   Bowers is further cautioned that if he accumulates
three “strikes” pursuant to
    28 U.S.C. § 1915
    (g), he may not
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
    28 U.S.C. § 1915
    (g).
IFP MOTION DENIED; MOTION TO APPOINT COUNSEL DENIED;
THREE-STRIKES WARNING ISSUED; APPEAL DISMISSED.