United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 25, 2004
Charles R. Fulbruge III
Clerk
No. 04-50253
Summary Calendar
DAVID WIGGINS, III,
Plaintiff-Appellant,
versus
OSCAR MENDOZA; MONTE CARROLL; SERGIO GUERRA; LOUIS
HERNANDEZ; RANDOLPH PRATZ; JEFFRIE MARTON; RAFAEL
OLIVER; ROGER CHILDRESS; HATTIE WHITEFIELD; KELLIE WARD
TRINIDAD ZAMORA; PHILIP SIFUENTES,
Defendants-Appellees.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. SA-02-CV-805
--------------------
Before JOLLY, HIGGINBOTHAM, and PICKERING, Circuit Judges.
PER CURIAM:*
David Wiggins, III, Texas prisoner # 594257, moves to
proceed in forma pauperis (IFP) on appeal from the dismissal of
his 42 U.S.C. § 1983 claims for failure to exhaust administrative
remedies and as frivolous. The merits of Wiggins’s appeal are
“inextricably intertwined” with the magistrate judge’s
certification that the appeal was not taken in good faith, and,
therefore, we determine both issues, denying IFP and dismissing
*
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this opinion should not be published and is not precedent except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. 04-50253
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the appeal. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir.
1997).
Wiggins has not shown that his failure to exhaust
administrative remedies is a nonfrivolous issue. We reject
Wiggins’s argument that the defendants waived the exhaustion
defense. Assuming, arguendo, that the exhaustion requirement is
an affirmative defense that may be waived, such a waiver would
not be applicable in this case because Wiggins was on notice five
months prior to the entry of judgment that his exhaustion of
administrative remedies was in question and was given the
opportunity to submit the relevant grievances; therefore, he was
not prejudiced. See Lafreniere Park Found. v. Broussard,
221 F.3d 804, 808 (5th Cir. 2000). Insofar as Wiggins contends
that copies of the missing grievances were stolen from his cell
following a major use of force, this fact does not account for
their absence from the defendants’ records of inmate grievances
if they were indeed filed.
Wiggins has also not shown his exhausted claims to be
arguable on their merits. The summary judgment evidence supports
the magistrate judge’s determination that the defendants did not,
as a matter of law, act with deliberate indifference to Wiggins’s
serious medical needs after the November 5, 2001, major use of
force. See Farmer v. Brennan, 511 U.S. 825, 837 (1994).
In light of the foregoing, Wiggins has not demonstrated that
his appeal would involve nonfrivolous issues. His motion for IFP
No. 04-50253
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status is therefore DENIED and his appeal DISMISSED as frivolous.
See 5TH CIR. R. 42.2; Howard v. King, 707 F.2d 215, 220 (5th Cir.
1983). Wiggins is warned that the dismissal of this appeal as
frivolous counts as a strike under 28 U.S.C. § 1915(g). See
Adepegba v. Hammons, 103 F.3d 383, 385-87 (5th Cir. 1996).
IFP DENIED; APPEAL DISMISSED.