Floyd v. Texas Tech University Hospital System ( 2004 )

United States Court of Appeals
Fifth Circuit
FILED
IN THE UNITED STATES COURT OF APPEALS August 18, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-10037
Conference Calendar
DERRICK ADAM FLOYD,
Plaintiff-Appellant,
versus
TEXAS TECH UNIVERSITY HOSPITAL SYSTEM, Correctional Division;
DAVID BASSE, DR.; NFN CISCERN, Licensed Vocational Nurse,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 2:03-CV-252
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Before HIGGINBOTHAM, DAVIS, and PICKERING, Circuit Judges.
PER CURIAM:*
Derrick Adam Floyd, Texas state prisoner # 1143954, appeals
the district court’s dismissal of his civil rights complaint
without prejudice for failure to exhaust administrative remedies.
42 U.S.C. § 1997e(a). We DISMISS the appeal as frivolous.
“Exhaustion is now mandatory, irrespective of the forms of
relief sought and offered through administrative avenues.” Days
v. Johnson, 322 F.3d 863, 866 (5th Cir. 2003) (citation and
quotation marks omitted). A prisoner must exhaust his
*
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this opinion should not be published and is not precedent except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. 04-10037
-2-
administrative remedies before filing suit. Wendell v. Asher,
162 F.3d 887, 890-91 (5th Cir. 1998). Section 1997e, 42 U.S.C.,
does not require a judicial inquiry into the adequacy of
available administrative remedies. See 42 U.S.C. § 1997e;
Underwood v. Wilson, 151 F.3d 292, 294 (5th Cir. 1998).
Floyd conceded in the district court that he did not file
any prison grievances, and he did not assert that he utilized his
administrative remedies relative to any defendant. In this
court, Floyd makes only conclusional allegations of exhaustion.
Because Floyd has not shown that he will present a nonfrivolous
issue on appeal, his appeal is DISMISSED. 5TH CIR. R. 42.2; see
Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983).
The dismissal of this appeal as frivolous counts as a
“strike” under the Prison Litigation Reform Act. See Adepegba v.
Hammons, 103 F.3d 383, 387 (5th Cir. 1996). Floyd is CAUTIONED
that if he accumulates three strikes under 28 U.S.C. § 1915(g),
he will not be able to 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. 28 U.S.C. § 1915(g).
APPEAL DISMISSED AS FRIVOLOUS; SANCTION WARNING ISSUED.