Annis, et al v. Lappin, et al

Filing 920061018


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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 October 18, 2006 Charles R. Fulbruge III Clerk No. 05-50659 Summary Calendar BOBBY GENE ANNIS; GREGORIO CASTANEDA; MICHAEL BRIGGS; G. H. LINCECUM, Plaintiffs-Appellants, versus HARLEY G. LAPPIN, Director, Federal Bureau of Prisons; JAMES B. FOX, Warden, Bastrop Federal Correctional Institution; DEBORA WARREN, in her individual capacity and as an employee of the Bastrop Federal Correctional Institution, Defendants-Appellees. -------------------Appeal from the United States District Court for the Western District of Texas USDC No. 1:04-CV-539 -------------------Before SMITH, WIENER, and OWEN, Circuit Judges. PER CURIAM:* The plaintiffs appeal from the district court's dismissal of their lawsuit alleging that the defendants violated the plaintiffs' Eighth Amendment rights while the plaintiffs were incarcerated at the Bastrop Federal Correctional Institution. This court reviews a dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure de novo. 2000). 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. * Edwards v. Johnson, 209 F.3d 772, 776 (5th Cir. No. 05-50659 -2In their first issue, the plaintiffs challenge the district court's dismissal based upon the general Rule 12(b)(6) standard but fail to adequately brief their argument. is waived. Accordingly, that issue See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993); FED. R. APP. P. 28(a)(9). The dismissal plaintiffs for also to contend exhaust that the district court's was failure administrative remedies erroneous because there was no evidence in the record that any administrative remedies existed, other than the remedies that the plaintiffs pursued. Prisons has As noted in district court, the Bureau of an administrative remedy program. established 28 C.F.R. 542.13-542.15; see also Lundy v. Osborn, 555 F.2d 534, 534-35 (5th Cir. 1977). For the purpose of meeting the exhaustion requirement set forth at 42 U.S.C. 1997e(a), it is the plaintiffs who must allege exhaustion with sufficient specificity. See Underwood v. Wilson, 151 F.3d 292, 294, 296 (5th Cir. 1998); see also Days v. Johnson, 322 F.3d 863, 866 (5th Cir. 2003) ("Since the amendment of 1997e, this Court has taken a strict approach to the exhaustion requirement."). lacks merit. As the plaintiffs have failed to challenge the district court's dismissal on any other basis, the district court's judgment is AFFIRMED. Accordingly, the plaintiffs' argument

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