Summers vs. Gibson, (5th Cir. 2004)
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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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR .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. 04-40101 Conference Calendar ANTHONY L. SUMMERS, Plaintiff-Appellant, versus UP GIBSON, Officer; D. DOUGHTY, Warden; UP MATTHEWS, Sergeant, Defendants-Appellees. Appeal from the United States District Court for the Eastern District of Texas USDC No. 1:03-CV-1406 Before HIGGINBOTHAM, DAVIS, and PICKERING, Circuit Judges.
PER CURIAM: * Anthony L. Summers, Texas prisoner # 1130913, appeals the district court§ 1983 civil rights action for failure to state a claim for failing to exhaust administrative remedies pursuant to 42 U.S.C. § 1997e. Summers argues that he filed his complaint in the district court without having exhausted the grievance procedures because of fear of what would happen to him, but he does not allege that he has been retaliated against for filing grievances or lawsuits. Summers United States Court of Appeals Fifth Circuit F I L E D August 18, 2004 Charles R. Fulbruge III Clerk stated in his complaint that he did not exhaust the grievance procedures at his institution. In his reply to the magistrate judgeÂ’s report, he gave no explanation for his failure to exhaust and made no argument against the magistrate judgeÂ’s recommendation of dismissal on that basis. The district court did not err in dismissing SummersÂ’s action for failure to exhaust administrative remedies. See Days v. Johnson , 322 F.3d 863, 866 (5th Cir. 2003).
SummersÂ’s appeal is without arguable merit and is frivolous.
See Howard v. King , 707 F.2d 215, 219-20 (5th Cir. 1983).
Because the appeal is frivolous, it IS DISMISSED. See 5 TH C IR . R. 42.2. Summers is hereby informed that the dismissal of this appeal as frivolous counts as a strike for purposes of 28 U.S.C. § 1915(g), in addition to the strike for the district court§ 1915(g)].§ 1915(g).
APPEAL DISMISSED AS FRIVOLOUS; SANCTIONS WARNING ISSUED.
No. 04-40101
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This document cites
- U.S. Court of Appeals for the Fifth Circuit - Frank Days, Plaintiff-Appellant, v. Gary L. Johnson, Director, Texas Department of Criminal Justice, Institutional Division; Lupe Lozano, Warden; Edgar Sullenbarger, Captain; Rodriguez, Sergeant; Peterson, Safety Officer, Defendants-Appellees., 322 F.3d 863 (5th Cir. 2003)
- US Code - Title 28: Judiciary and Judicial Procedure - 28 USC 1915 - Sec. 1915. Proceedings in forma pauperis
- US Code - Title 42: The Public Health and Welfare - 42 USC 1997 - Sec. 1997. Definitions
- U.S. Court of Appeals for the Fifth Circuit - Clinton C. Howard, Jr., and Michael Chapman and Kenneth Robinson, Plaintiffs-Appellants, v. John T. King, Secretary, Department of Corrections, and Ross Maggio, Jr., Warden, Louisiana State Penitentiary, Defendants-Appellees., 707 F.2d 215 (5th Cir. 1983)
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