            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                            June 5, 2009

                                     No. 08-10819                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



GAMA GABRIEL ANTUNEZ

                                                   Plaintiff - Appellant
v.

FNU MENDEZ, Officer, Middleton Unit

                                                   Defendant - Appellee




                     Appeal from the United States District Court
                          for the Northern District of Texas
                                 USDC No. 1:08-CV-44


Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
       Federal prisoner Gama Gabriel Antunez brought a pro se 42 U.S.C. § 1983
action against Officer Mendez for allegedly throwing him against a wall and
injuring his spine. The district court dismissed his complaint as malicious 1 and
as time barred.2


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
       1
           28 U.S.C. § 1915A.
       2
           28 U.S.C. § 1915.
                                        No. 08-10819

       The district court did not abuse its discretion in dismissing Antunez’s
complaint as malicious. “Repetitious litigation of virtually identical causes of
action is subject to dismissal . . . as malicious.” 3 Antunez had brought a prior
suit against Mendez based on the same facts and raising the same claims he
brings in the present action.          The district court in that prior case granted
Mendez summary judgment because Antunez failed to properly exhaust
administrative prison grievance remedies before bringing suit, as required by
the Prison Litigation Reform Act.4             Specifically, after Antunez received an
unfavorable response to his Step 1 grievance filing, he filed his Step 2 grievance
outside of the ten day period a prisoner has to submit an appeal. The district
court was within its discretion to sua sponte screen this repetitious complaint
and dismiss it as malicious.
       AFFIRMED.




       3
           Bailey v. Johnson, 846 F.2d 1019, 1021 (5th Cir. 1988) (per curiam).
       4
        42 U.S.C. § 1997e(a). See Woodford v. Ngo, 548 U.S. 81, 88 (2006) (holding for the
prison-official petitioner that “a prisoner must complete the administrative review process in
accordance with the applicable procedural rules, including deadlines, as a precondition to
bringing suit in federal court.”).

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