Reed v. Johnson, et al

Filing 920060807


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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 August 7, 2006 Charles R. Fulbruge III Clerk No. 05-10948 Summary Calendar ARNOLD RAY REED; ET AL., Plaintiffs, ARNOLD RAY REED, Plaintiff-Appellant, versus GARY JOHNSON; JAMES DUKE; EDDIE RIGG, Warden, Middleton Unit, Defendants-Appellees. -------------------Appeal from the United States District Court for the Northern District of Texas USDC No. 1:04-CV-116 -------------------Before JONES, Chief Judge, and JOLLY and OWEN, Circuit Judges. PER CURIAM:* Arnold Ray Reed, Texas prisoner # 1205652, appeals following the district court's dismissal of his 42 U.S.C. 1983 suit for failure to exhaust administrative remedies. We note first that Reed asserts that he did not receive timely notice of the district court's dismissal and that he signed his notice of appeal on the day after he became aware of the dismissal. We pretermit, however, 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. * any question concerning Reed's notice of appeal because this appeal lacks merit. Cir. 2000). "No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. 1997e(a). Exhaustion of administrative See United States v. Alvarez, 210 F.3d 309, 310 (5th remedies is "mandatory, `irrespective of the forms of relief sought and offered through administrative avenues.'" 322 F.3d 863, 866 (5th Cir. 2003)(quoting Days v. Johnson, Booth v. Churner, 532 U.S. 731, 739, 741 n.6 (2001)). Reed devotes the majority of his brief to arguing the merits of his claims, and he abandons the exhaustion issue. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). conclude from a review of the record that See Yohey v. Further, we pleadings Reed's demonstrate that he failed to exhaust his administrative remedies, and the district court did not err in dismissing the complaint. See Days, 322 F.3d at 866. The appeal is without arguable merit, is frivolous, and is therefore dismissed. See Howard v. King, 707 F.2d 215, 220 (5th Reed is cautioned that the dismissal Cir. 1983); 5TH CIR. R. 42.2. of this appeal as frivolous counts as a strike under 28 U.S.C. 1915(g) and that if he accumulates three strikes, he will not be able to proceed in forma pauperis (IFP) in any civil action or 2 appeal filed while he is incarcerated or detained in any facility unless he is under imminent danger of serious physical injury. See Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir. 1996). APPEAL DISMISSED; SANCTION WARNING ISSUED. 3

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