                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                  April 20, 2005

                                                          Charles R. Fulbruge III
                                                                  Clerk
                             No. 04-30874
                         Conference Calendar



ALVIN HARVEY,

                                     Plaintiff-Appellant,

versus

A. HUFF; B. MOSS; W. HOLLENSHEAD; M. DAUZAT,

                                     Defendants-Appellees.

                       --------------------
          Appeal from the United States District Court
              for the Western District of Louisiana
                     USDC No. 5:04-CV-628-SMH
                       --------------------

Before JONES, SMITH, and PRADO, Circuit Judges.

PER CURIAM:*

     Alvin Harvey, Louisiana prisoner # 333786, appeals from the

dismissal without prejudice of his 42 U.S.C. § 1983 complaint for

failure to exhaust administrative remedies.    This court reviews

such a dismissal de novo.    Richardson v. Spurlock, 260 F.3d 495,

499 (5th Cir. 2001).   Pursuant to 42 U.S.C. § 1997e(a), prisoners

are required to exhaust all available administrative remedies

prior to filing a 42 U.S.C. § 1983 complaint.




     *
       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this opinion should not be published and is not precedent except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. 04-30874
                                  -2-

     Harvey argues on appeal that he met the exhaustion

requirement because prison officials failed to respond to his

first-step grievance.   The record shows that his first-step

grievance was rejected, and Harvey concedes that he failed to

proceed to the second step.    Harvey therefore does not qualify

for the exception to the exhaustion requirement based upon the

lack of a timely response.    See Underwood v. Wilson, 151 F.3d

292, 295 (5th Cir. 1998).    Harvey also contends that the district

court erred by holding that he did not allege a valid liberty

interest.   Because the district court did not issue such a

holding, that argument lacks factual merit.

     Harvey’s appeal is without arguable merit and is frivolous.

See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983).

Because the appeal is frivolous, it is DISMISSED.    See 5TH CIR.

R. 42.2.    The dismissal of this appeal as frivolous counts as a

strike for purposes of 28 U.S.C. § 1915(g).    See Adepegba v.

Hammons, 103 F.3d 383, 385-87 (5th Cir. 1996).    We warn Harvey

that if he accumulates three strikes under 28 U.S.C. § 1915(g),

he will not be able to proceed in forma pauperis 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; SANCTION WARNING ISSUED.
