                                                          United States Court of Appeals
                                                                   Fifth Circuit
                                                                F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                     June 19, 2003

                                                            Charles R. Fulbruge III
                                                                    Clerk
                              No. 02-11392
                            Summary Calendar



                            JEROMY D. BRAY,

                                                   Plaintiff-Appellant,

                                 versus

                        J. EDWARDS, Warden,

                                                   Defendant-Appellee.

                       --------------------
           Appeal from the United States District Court
                for the Northern District of Texas
                       USDC No. 1:02-CV-199
                       --------------------

Before DAVIS, JONES and STEWART, Circuit Judges.

PER CURIAM:*

     Jeromy D. Bray, Texas prisoner # 919964, appeals the district

court’s dismissal of his 42 U.S.C. § 1983 action seeking an

injunction for his protection based on his allegations of an

ongoing   extortion   and   protection    racket   involving     violence

perpetrated upon white inmates such as himself, with the complicit

knowledge and assistance of the prison staff.




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this opinion should not be published and is not precedent except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

     Bray argues that the district court abused its discretion in

dismissing his case.       He contends that the complaint form he has in

his files showed that he had checked the “no” box regarding

exhaustion of administrative remedies and that he must have made a

clerical error in checking the “yes” box on the copy he filed in

district court.         He contends that when he received the district

court’s order of October 25, he filed a response explaining why he

had filed the lawsuit without exhausting administrative remedies,

but that this response never reached the court. Bray explains that

he did not file a grievance out of fear of retaliation.              Regarding

the district court’s ruling that he had failed to state a claim,

Bray asserts that he believes that he is at serious risk of

personal harm because he is a white inmate.

     Contrary to the district court’s conclusion that Bray had

failed to state a claim because he had alleged no personal harm,

Bray’s allegation that the type of extortion and protection racket

to which inmate Panneck was subjected goes on constantly with the

knowledge of the prison officers, and that he himself is a member

of the class of inmate which is preyed upon, is a sufficient

allegation of harm to establish standing for him to seek injunctive

relief.    Smith v. Arkansas Department of Correction, 103 F.3d 637,

643-44    (8th   Cir.    1996).     Thus,   the   district   court   erred   in

determining that Bray failed to state a claim or that his complaint

was frivolous.      Black v. Warren, 134 F.3d 732, 733-34 (5th Cir.

1998) (de novo review).
                                   No. 02-11392
                                        -3-

      However, as also noted in Smith, it is this very type of claim

for   injunctive    relief    for    which       exhaustion    of   administrative

remedies within the prison grievance system is so important.                      103

F.3d at 647.       “When a prison inmate seeks injunctive relief, a

court need not ignore the inmate’s failure to take advantage of

adequate prison procedures, and an inmate who needlessly bypasses

such procedures may properly be compelled to pursue them.”                  Farmer

v. Brennan, 511 U.S. 825, 847 (1994).

      If, as he now claims, Bray deliberately bypassed the prison

grievance procedures because he was afraid of retaliation, he could

and should have stated this in his complaint.                       If, as he now

claims, the district court did not receive his response to its

October 25 order requiring him to provide proof of exhaustion, he

could and should have resubmitted his response in the form of a

postjudgment motion for reconsideration in the district court.

Based on the record before the district court at the time it

dismissed   Bray’s       action,    the    district    court    did   not   err   in

dismissing Bray’s complaint for failure to exhaust. Powe v. Ennis,

177 F.3d 393, 394 (5th Cir. 1999) (de novo review).                   Because Bray

was proceeding in forma pauperis (IFP) in the district court, the

dismissal   of     the    complaint       with    prejudice    for    purposes     of

proceeding IFP was within the discretion of the district court.

See Underwood v. Wilson, 151 F.3d 292, 296 (5th Cir. 1998).                      Such

a dismissal is without prejudice to refiling a fee-paid complaint

making the same allegations.          Id.
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                                 -4-

     Bray argues that the district court abused its discretion by

imposing such harsh sanctions in the form of $100, a dismissal with

prejudice, and a strike under 28 U.S.C. § 1915(g).      The district

court imposed sanctions based on its determination that Bray had

deliberately attempted to mislead the court by checking the box

indicating that administrative remedies had been exhausted, when it

was clear from the date of the incident and the date of filing the

complaint that it was impossible for Bray to have exhausted his

administrative remedies through the prison grievance procedures.

     False statements by prisoners in their pleadings may result in

sanctions under FED. R. CIV. P. 11(c).   Hatchet v. Nettles, 201 F.3d

651, 654 (5th Cir. 2000).   The district court warned Bray that it

would sanction him for providing a false statement if he did not

provide proof of exhaustion.   When Bray did not respond, the court

did exactly that.   Based on the record before the district court,

the court did not abuse its discretion in imposing a monetary

sanction of $100.   See Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th

Cir. 1993) (abuse of discretion standard of review).    Bray made no

attempt to explain to the district court that he had mailed a

response which he now alleges did not reach the court.

     As for the district court’s determination that the dismissal

counts as a strike under 28 U.S.C. § 1915(g), that section provides

that to count as a strike, the dismissal must be on the grounds

that the action is “frivolous, malicious, or fails to state a claim

upon which relief may be granted.”       Bray’s claim for injunctive
                            No. 02-11392
                                 -5-

relief based upon his allegations of an extortion and protection

racket involving assaults on white inmates, which is allowed to go

on with the knowledge of the prison officers, does state a claim

and is not frivolous. However, the district court’s dismissal with

prejudice of Bray’s action for failure to exhaust administrative

remedies, based upon the district court’s finding that he made a

false   representation,   falls   within   the   “malicious”   category

justifying a strike.

     AFFIRMED.
