                                                       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.

                       --------------------
          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this opinion should not be published and is not precedent except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
                                  -2-

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
                                -3-


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.
