United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS April 22, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 02-11110
Conference Calendar
IRVING ELLIOT, also known as Al Yasa Muhammad,
Plaintiff-Appellant,
versus
NANCY JOWERS; SHEILA WHATLEY; NFN HAMILTON;
NFN MARTIN, Sergeant; NFN SAVAGE, Officer;
NFN SOUTHERN; NFN MCCOY; J.K. PRICE; R. PEREZ,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 2:01-CV-233
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Before DAVIS, BARKSDALE, and STEWART, Circuit Judges.
PER CURIAM:*
Proceeding pro se and in forma pauperis, Irving Dean Elliot,
Texas prisoner # 384725, appeals the dismissal of his 42 U.S.C.
§ 1983 suit as frivolous. The sole arguable issue on appeal is
whether the district court erred in determining that Elliot
failed to demonstrate that he had exhausted his administrative
remedies prior to filing his complaint. Elliot fails to address
*
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that this opinion should not be published and is not precedent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. 02-11110
-2-
this issue in his brief. Accordingly, it is deemed abandoned.
See Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d
744, 748 (5th Cir. 1987). This appeal lacks arguable merit and
therefore is DISMISSED as frivolous. See 5TH CIR. R. 42.2. In
light of this disposition, all outstanding motions are DENIED.
Elliot has previously had an appeal dismissed as frivolous.
See Elliot v. Geerds, No. 01-20179 (5th Cir. July 6, 2001)
(unpublished). The district court’s dismissal and this court’s
dismissal of his appeal counted as two “strikes” for purposes of
28 U.S.C. § 1915(g). The dismissal of this appeal and the
district court’s dismissal each count as a “strike” for purposes
of 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383,
387-88 (5th Cir. 1996). Because Elliot has accumulated more than
three “strikes,” he may not pursue a civil action or appeal in
forma pauperis unless he is “under imminent danger of serious
physical injury.” 28 U.S.C. § 1915(g).
APPEAL DISMISSED. 5TH CIR. R. 42.2. ALL OUTSTANDING MOTIONS
DENIED. 28 U.S.C. § 1915(g) SANCTION IMPOSED.