O'Dell vs. Schwartzer, (5th Cir. 2000)
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* Pursuant to 5 TH C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR .
R. 47.5.4. IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 00-50057 Summary Calendar ROBERT EARL OÂ’DELL, Plaintiff-Appellant, versus BRUCE W. SCHWARTZER; KENNETH E. ARRINGTON; ROGER PRYOR, Defendants-Appellees. Appeal from the United States District Court for the Western District of Texas USDC No. W-99-CV-321 May 8, 2000 Before DAVIS, EMILIO M. GARZA and DENNIS, Circuit Judges.
PER CURIAM: * Robert Earl O§ 1983 complaint for failure to exhaust his available administrative remedies. By moving for IFP status, OÂ’Dell is challenging the district courtÂ’s certification that IFP status should not be granted on appeal because his appeal presents no nonfrivolous issues and is not taken in good faith. See Baugh v. Taylor , 117 F.3d 197, 202 (5th Cir. 1997).
O§ 1983 complaint only 20 days after the incident and foregoing all of his administrative remedies, OÂ’Dell deprived the prison authorities of an opportunity to redress the matter administratively. OÂ’Dell has not shown that he is excused from the exhaustion requirement. OÂ’Dell has therefore failed to show that he will present a nonfrivolous issue on appeal.
Wendell v. Asher , 162 F.3d 887, 890-91 (5th Cir. 1998).
Accordingly, we uphold the district courtÂ’s order certifying that the appeal presents no nonfrivolous issues. OÂ’DellÂ’s request for IFP status is DENIED, and his appeal is DISMISSED as frivolous.
See Baugh , 117 F.3d at 202 & n.24; 5 TH C IR . R. 42.2. The dismissal of this appeal as frivolous counts as a § 1915(g). See Adepegba v. Hammons , 103 F.3d 383, 385-87 (5th Cir. 1996). O§ 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 § 1915(g).
IFP MOTION DENIED; APPEAL DISMISSED; SANCTIONS WARNING ISSUED.
No. 00-50057
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This document cites
- U.S. Court of Appeals for the Fifth Circuit - Chandler Wendell, Jr., Plaintiff-Appellant, v. Lloyd Asher, Correctional Officer; William Pittman, Correctional Officer; Billye Forrest, Correctional Lieutenant; Ricky Tarver, Correctional Captain; Mike Nichols, Correctional Major; Tracey Porter, Classification Officer; Linda Dehoyos, Doctor; Timothy West, Senior Warden, Defendants-Appellees., 162 F.3d 887 (5th Cir. 1998)
- U.S. Court of Appeals for the Fifth Circuit - Robert L. Baugh, Plaintiff-Appellant, v. Joe Max Taylor; Eric Nevelow; Perry Evans, Defendants-Appellees., 117 F.3d 197 (5th Cir. 1997)
- U.S. Court of Appeals for the Fifth Circuit - Valentino B. Adepegba, Plaintiff-Appellant, v. Billy G. Hammons, Individually and in His Official Capacity as Special Agent Assigned To F C I Oakdale; John L. Nixon, Individually and in His Official Capacity as Acting Supervisory Special Agent At F C I Oakdale, Defendants-Appellees., 103 F.3d 383 (5th Cir. 1996)
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