United States Court of Appeals
Fifth Circuit
FILED
IN THE UNITED STATES COURT OF APPEALS August 18, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-41681
Conference Calendar
MELVIN MOORE,
Plaintiff-Appellant,
versus
FRANCIS CHERIAN; DAVID ONUORA, Physician’s Assistant;
CHARLES JAMES, also known as Charles James, Captain,
Defendants-Appellees.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 9:02-CV-267
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Before HIGGINBOTHAM, DAVIS, and PICKERING, Circuit Judges.
PER CURIAM:*
Melvin Moore, Texas prisoner # 893206, proceeding pro se and
in forma pauperis (IFP), appeals the district court’s dismissal
of his 42 U.S.C. § 1983 complaint without prejudice on summary
judgment for failure to exhaust administrative remedies.
Because Moore did not complete the submission of this
grievance until after his lawsuit was filed, he did not fulfill
the requirement that he exhaust his administrative remedies
before filing his lawsuit. See 42 U.S.C. § 1997e(a); Wendell v.
*
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this opinion should not be published and is not precedent except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. 03-41681
-2-
Asher, 162 F.3d 887, 890-91 (5th Cir. 1998). In addition,
Moore’s allegation that the defendants withheld evidence that
would show his full compliance with the required grievance
procedures is raised for the first time on appeal and is
therefore not considered. See Leverette v. Louisville Ladder
Co., 183 F.3d 339, 342 (5th Cir. 1999).
Because Moore’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 as frivolous counts as a strike under the Prison
Litigation Reform Act. Adepegba v. Hammons, 103 F.3d 383, 387
(5th Cir. 1996). Moore is CAUTIONED that if he accumulates three
“strikes” under 28 U.S.C. § 1915(g), he will not be able to
proceed IFP 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 AS FRIVOLOUS; SANCTION WARNING ISSUED.