United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
April 15, 2003
FOR THE FIFTH CIRCUIT
____________________ Charles R. Fulbruge III
Clerk
No. 02-11308
Summary Calendar
____________________
IRVING DEAN ELLIOT,
also known as Al Yasa Muhammad,
Plaintiff-Appellant,
versus
SHEILA WHATLEY,
Defendant-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
(2:02-CV-105)
_________________________________________________________________
Before BARKSDALE, DEMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Irving Dean Elliot, Texas prisoner #384725, appeals, pro se
and in forma pauperis, the dismissal of his 42 U.S.C. § 1983 action
as frivolous and for failure to exhaust administrative remedies.
Elliot does not address the district court’s finding of failure to
exhaust administrative remedies except to contradict it in a
conclusory statement. By failing to brief any argument challenging
the reasons for the dismissal, Elliot has waived the sole ground
*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this opinion should not be published and is not precedent except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.
for appeal. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir.
1993). This appeal is therefore without arguable merit and is
DISMISSED as frivolous. See Howard v. King, 707 F.2d 215, 219-20
(5th Cir. 1983); 5TH CIR. R. 42.2.
Elliot has previously had an appeal dismissed as frivolous.
See Elliot v. Geerds, No. 01-20179 (5th Cir. 6 July 2001)
(unpublished). Thus, Elliot already has two “strikes” for purposes
of 28 U.S.C. § 1915(g). The dismissal of this appeal as frivolous
and the district court’s dismissal of the action as frivolous both
count as strikes for purposes of 28 U.S.C. § 1915(g). See Adepegba
v. Hammons, 103 F.3d 383, 388 (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).
DISMISSED; SANCTION IMPOSED
2