     Case: 12-40874       Document: 00512066475         Page: 1     Date Filed: 11/28/2012




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

                                                                            FILED
                                                                        November 28, 2012
                                     No. 12-40874
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

CHARLES EUGENE RILEY,

                                                  Plaintiff-Appellant

v.

DONNA KAZMIERCZAK; R. MORRIS; N. WEBB; UNKNOWN COOPER;
STEPHEN SIMS; LURENZA HUTCHISON,

                                                  Defendants-Appellees


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 6:11-CV-607


Before SMITH, PRADO, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Charles Eugene Riley, Texas prisoner # 552499, moves for leave to proceed
in forma pauperis (IFP) on appeal. He filed a 42 U.S.C. § 1983 complaint against
Major Donna Kazmierczak, Warden R. Morris, Assistant Warden N. Webb,
Major Cooper, Lieutenant Stephen Sims, and Officer Lurenza Hutchison,
alleging a failure to protect, deliberate indifference to serious medical needs,
excessive and wanton use of force, and violations of the Americans with


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
    Case: 12-40874      Document: 00512066475    Page: 2   Date Filed: 11/28/2012

                                  No. 12-40874

Disabilities Act (ADA). The magistrate judge (MJ) granted summary judgment
in favor of the defendants based on Riley’s failure to exhaust administrative
remedies. The MJ also determined that Riley’s appeal was not taken in good
faith.
         By moving to proceed IFP, Riley is challenging the district court’s
certification that his appeal is not taken in good faith. See Baugh v. Taylor, 117
F.3d 197, 202 (5th Cir. 1997). Our inquiry into an appellant’s good faith “is
limited to whether the appeal involves legal points arguable on their merits (and
therefore not frivolous).” Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983)
(internal quotation marks and citation omitted). We may dismiss the appeal if
it is frivolous. See Baugh, 117 F.3d at 202 n.24; 5TH CIR. R. 42.2.
         We review the grant of summary judgment de novo. Cousin v. Small, 325
F.3d 627, 637 (5th Cir. 2003). Summary judgment is proper “if the movant
shows that there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.”       FED. R. CIV. P. 56(a).    The
nonmovant may not meet his burden of establishing the existence of a genuine
issue of material fact with conclusional allegations, unsubstantiated assertions,
or a scintilla of evidence. Hathaway v. Bazany, 507 F.3d 312, 319 (5th Cir.
2007).
         To the extent that Riley challenges the merits of his underlying
constitutional claims and argues that the defendants are not immune from suit,
such arguments are not “directed solely to the trial court’s reasons for the
certification decision.” See Baugh, 117 F.3d at 202. Riley was required under
42 U.S.C. § 1997e(a) to exhaust his administrative remedies for all his claims,
including those raised under the ADA, since they involved matters of prison life.
See Booth v. Churner, 532 U.S. 731, 739 (2001); Clifford v. Gibbs, 298 F.3d 328,
332 (5th Cir. 2002). Additionally, although Riley appears to assert that he was
not required to exhaust because the prison administrative system would not
provide him with adequate relief, exhaustion is mandatory “irrespective of the

                                        2
       Case: 12-40874   Document: 00512066475     Page: 3   Date Filed: 11/28/2012

                                  No. 12-40874

forms of relief sought and offered through administrative avenues.” Booth, 532
U.S. at 741 n.6. Riley also appears to assert that he in fact exhausted his
administrative remedies as to at least some of his claims. Our review of Riley’s
appellate brief does not establish that the district court erred in concluding that
no genuine issue of material fact existed with respect to the exhaustion of
administrative remedies. See Hathaway, 507 F.3d at 319; Cousin, 325 F.3d at
637.
        Riley’s appeal lacks arguable merit and is therefore frivolous.
See Howard, 707 F.2d at 220. Accordingly, his motion for leave to proceed
IFP on appeal is denied, and his appeal is dismissed as frivolous. See Baugh,
117 F.3d at 202 n.24; 5TH CIR. R. 42.2. Additionally, the dismissal of this appeal
as frivolous counts as one strike under 28 U.S.C. § 1915(g). See Adepegba v.
Hammons, 103 F.3d 383, 388 (5th Cir. 1996). Riley is cautioned that if he
accumulates three strikes, he will no longer be allowed to proceed in forma
pauperis in any civil action or appeal filed while he is detained or incarcerated
in any facility unless he is in imminent danger of serious physical injury. See
§ 1915(g).
        IFP MOTION DENIED; APPEAL DISMISSED; SANCTION WARNING
ISSUED.




                                        3
