Howard v. State of Texas

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 22, 2003
• Docket: 02-50983
• Status: Unpublished

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT April 22, 2003

Charles R. Fulbruge III Clerk No. 02-50983 Conference Calendar

RICHARD C. HOWARD,

Plaintiff-Appellant,

versus

STATE OF TEXAS; TEXAS DEPARTMENT OF CRIMINAL JUSTICE - INSTITUTIONAL DIVISION; GARY L. JOHNSON, Director; HERBERT L. SCOTT, Warden; GOEBEL C. PERKINS, Alfred Hughes Unit; HEATH M. BALLAD, Alfred Hughes Unit; MONTE SMITH, Alfred Hughes Unit,

Defendants-Appellees.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. W-00-CV-327 --------------------

Before DAVIS, BARKSDALE, and STEWART, Circuit Judges.

PER CURIAM:*

Richard C. Howard, Texas prisoner #662409, moves for leave

to proceed in forma pauperis (IFP) following the district court’s

certification that his appeal from the dismissal of his civil-

rights complaint for failure to exhaust administrative remedies,

pursuant to 42 U.S.C. § 1997e(a), was taken in bad faith. By

moving for leave to proceed IFP, Howard challenges the bad-faith

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-50983 -2-

certification. Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir.

1997). Howard moves for injunctive relief pursuant to FED. R.

APP. P. 8; his Rule 8 motion is DENIED.

Howard argues that he was not required to exhaust

administrative remedies because he sought only damages in his

complaint and damages are not obtainable in prison grievance

procedures. He alleges that he never received the order granting

the defendants leave to file an out-of-time motion to dismiss his

complaint and argues that the district court erred by dismissing

the complaint without allowing him an opportunity to respond to

the motion to dismiss.

Howard was required to exhaust administrative remedies even

though he sought only damages. See Booth v. Churner, 532 U.S.

731, 740-41 (2001). Any possible error by the district court

regarding whether Howard was notified of the district court’s

order is harmless -- Howard does not indicate in his appellate

brief that he would have presented any arguments in any response

to the order than he already had presented to the district court

when he responded to the defendants’ motion for leave to file an

out-of-time motion to dismiss. See Norman v. McCotter, 765 F.2d

504, 508 (5th Cir. 1985).

Howard’s appeal is without arguable merit and is frivolous.

Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983). We previously

affirmed the dismissal of one of Howard’s civil-rights complaints No. 02-50983 -3-

as frivolous. Howard v. Martin, No. 96-20143 (5th Cir. May 14,

1996) (unpublished). The dismissal of Howard’s previous

complaint counts as one “strike” for purposes of 28 U.S.C.

§ 1915(g) and the dismissal of the current appeal counts as a

second “strike.” Howard is warned that once he accumulates three

“strikes” he may not bring a civil action or appeal a judgment

in a civil action unless he “is under imminent danger of serious

physical injury.” § 1915(g).

IFP DENIED. APPEAL DISMISSED AS FRIVOLOUS. 5TH CIR.

R. 42.2. FED. R. APP. P. 8 MOTION DENIED. SANCTION WARNING

ISSUED.