Roque v. Stalder ( 2003 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-31047
Summary Calendar
JUSTO E. ROQUE, JR.,
Plaintiff-Appellant,
versus
RICHARD L. STALDER; C. M. LENSING, C. MOORE,
Defendants-Appellees.
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Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 02-CV-581
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February 18, 2002
Before BARKSDALE, DeMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Justo E. Roque, Jr., Louisiana prisoner #295066, appeals
from the dismissal of his 42 U.S.C. § 1983 complaint for failure
to exhaust administrative remedies, pursuant to 42 U.S.C.
§ 1997e(a), and as frivolous, pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). Roque moves for appointment of counsel; his
motion for appointment of counsel is DENIED.
Roque contends that the district court erred by dismissing
his complaint for failure to exhaust because his administrative
*
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that this opinion should not be published and is not precedent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. 02-31047
-2-
remedy applications were wrongly rejected, with no legal reasons
provided for the rejections. He does not argue that untimeliness
is an illegal reason for rejection, however. He also argues that
the district court erred by dismissing his substantive claim as
frivolous.
Roque did not exhaust his administrative remedies, which
were rejected as untimely. Booth v. Churner, 532 U.S. 731,
740-41 (2001); Marsh v. Jones, 53 F.3d 707, 710 (5th Cir. 1995).
The district court did not err by dismissing the complaint for
failure to exhaust administrative remedies or by dismissing the
complaint as frivolous. Rourke v. Thompson, 11 F.3d 47, 49
(5th Cir. 1993).
Roque’s appeal is without arguable merit and is dismissed as
frivolous. Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983).
Roque previously had an appeal dismissed as frivolous. Roque
v. INS, No. 99-30719 (5th Cir. Jun. 14, 2000) (unpublished).
The dismissal of Roque’s complaint and the dismissal of this
appeal count as two strikes against Roque for purposes of
28 U.S.C. § 1915(g). Adepegba v. Hammons, 103 F.3d 383, 388
(5th Cir. 1996). Because Roque has accumulated three strikes, he
may not proceed in forma pauperis is any civil action or appeal
unless he “is under imminent danger of serious physical injury.”
28 U.S.C. § 1915(g).
APPEAL DISMISSED. APPOINTMENT OF COUNSEL DENIED. 28 U.S.C.
§ 1915(g) SANCTION IMPOSED.