Green v. Johnson ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS May 28, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 02-61056
Summary Calendar
THOMAS FOX GREEN,
Plaintiff-Appellant,
versus
ROBERT JOHNSON, COMMISSIONER,
MISSISSIPPI DEPARTMENT OF
CORRECTIONS; UNKNOWN WALLER,
Warden; UNKNOWN SMITH, Legal
Officer; UNKNOWN DICKSON, Mail
Room Officer; CCA BOARD OF DIRECTORS;
UNKNOWN ALEXANDER, Assistant Supervisor;
EMMIT SPARKMAN, Parchman Superintendent;
UNKNOWN HAYWOOD, Transporting Correctional
Officer; UNKNOWN KELLY, Unit Major;
UNKNOWN AMBROSS, Captain; UNKNOWN
ELLIS, Lieutenant Watch Commander;
UNKNOWN DAVENPORT, Building Administrator;
UNKNOWN SPIVEY, Case Manager; UNKNOWN JOHNSON,
Officer, Unit 29; UNKNOWN PRESLEY, Officer,
Unit 29; UNKNOWN PRESLY, Warden, Unit 29;
WARDEN OF UNIT 32; JOHN DOE, Maintenance
Supervisor of Unit 32; UNKNOWN BUTLER,
Building Officer,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 4:02-CV-254-D
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No. 02-61056
-2-
Before JONES, STEWART and DENNIS, Circuit Judges.
PER CURIAM:*
Thomas Fox Green, Mississippi state prisoner R1783, appeals
the district court’s order denying his motion to proceed in forma
pauperis (IFP) in the district court and administratively closing
his 42 U.S.C. § 1983 complaint for failure to exhaust his
administrative remedies.
Prisoners who wish to seek relief under 42 U.S.C. § 1983 are
required to exhaust their prison administrative remedies prior to
filing their complaint irrespective of the type of relief sought.
See 42 U.S.C. § 1997e(a); Days v. Johnson, F.3d , 2003 WL
369677 at *2 (5th Cir. Feb. 21, 2003, No. 02-10064).
Green concedes that he did not seek to exhaust his
administrative remedies with respect to his instant claims. He
has not demonstrated that the remedies were unavailable to him.
Thus, the complaint was subject to dismissal for his failure to
exhaust the administrative remedies. Wendell v. Asher, 162 F.3d
887, 890-91 (5th Cir. 1998).
The district court erred in denying Green’s motion to
proceed IFP and in closing the case. The district court should
have granted the motion and docketed the case prior to making a
ruling on the complaint. Campbell v. Beto, 460 F.2d 765, 768
*
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. 02-61056
-3-
(5th Cir. 1972). However, because Green’s arguments are clearly
without merit, the appeal is DISMISSED as frivolous. See Howard
v. King, 707 F.2d 215, 219-20 (5th Cir. 1983); 5TH CIR. R. 42.2.
The dismissal of this appeal counts as a strike pursuant to
28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-
88 (5th Cir. 1996). Green is CAUTIONED that if he accumulates
three strikes he may not 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. See 28 U.S.C. § 1915(g).
APPEAL DISMISSED; THREE-STRIKES WARNING ISSUED.