     Case: 10-20772 Document: 00511461271 Page: 1 Date Filed: 04/29/2011




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

                                                 FILED
                                                                            April 29, 2011
                                     No. 10-20772
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

BARRY EMMETT,

                                                   Plaintiff-Appellant

v.

J. EBNER, Chief of Classification; RICK THALER; JOHN/JANE DOES, as
applicable,

                                                   Defendants-Appellees


                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 4:10-CV-3611


Before KING, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:*
       Barry Emmett, Texas prisoner # 1383329, appeals from the district court’s
dismissal of his 42 U.S.C. § 1983 complaint for failure to state a claim upon
which relief may be granted, predicated on his lack of exhaustion of
administrative remedies and the insufficiency of the factual and legal grounds
of his allegations. Emmett alleged that several of his constitutional rights were
violated based on phone restrictions imposed upon him following his conviction


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-20772 Document: 00511461271 Page: 2 Date Filed: 04/29/2011

                                   No. 10-20772

in a frivolous prison disciplinary case that was brought in retaliation for his
filing of grievances.
      De novo review applies to the district court’s sua sponte dismissal of
Emmett’s complaint pursuant to 28 U.S.C. § 1915A(b)(1). See Geiger v. Jowers,
404 F.3d 371, 373 (5th Cir. 2005). “[A] court can dismiss a case prior to service
on defendants for failure to state a claim, predicated on failure to exhaust, if the
complaint itself makes clear that the prisoner failed to exhaust.” Carbe v.
Lappin, 492 F.3d 325, 328 (5th Cir. 2007) (citing Jones v. Bock, 549 U.S. 199,
214-16 (2007)). Regarding the district court’s determination that he failed to
exhaust his administrative remedies, Emmett asserts that his exhaustion was
demonstrated by the Step 2 grievance and prison response that were attached
to his complaint. Emmett moves to supplement the record with his Step 1
grievance in order to show that his Step 2 grievance was timely filed.
      Emmett does not brief any argument challenging the propriety of the
district court’s reliance on his Step 2 grievance in concluding that he failed to
exhaust his administrative remedies and has thus abandoned any such
challenge. See Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993). Emmett’s
Step 2 grievance contested only whether his disciplinary charge was correctly
decided on the merits and whether he was given sufficient notice of his
disciplinary proceedings. Entirely absent from the grievance was any mention
that his disciplinary case was the product of retaliation or any complaint
concerning his phone restriction or its infringement on his constitutional rights.
      Emmett contends that no administrative remedies were available to him
because his complaint sought $6,200,000 in damages, an amount that exceeded
the $750 cap on damages that could be awarded through the grievance
procedure. He also contends that the prison grievance procedure could not
remedy the violation of his right of access to the courts because the harm
resulting from his inability to speak to his lawyer, due to the phone restriction,
had already occurred by the time of his grievance.

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                                  No. 10-20772

      A prisoner is required to exhaust administrative remedies regardless of
the relief offered through administrative procedures. 42 U.S.C. § 1997e(a);
Booth v. Churner, 532 U.S. 731, 741 (2001). A grievance is sufficient to exhaust
administrative remedies “to the extent that the grievance gives officials a fair
opportunity to address the problem that will later form the basis of the lawsuit.”
Johnson v. Johnson, 385 F.3d 503, 517 (5th Cir. 2004). The grievance need not
allege full-fledged legal theories but must alert prison officials to the problem
and provide them an opportunity to address it. Id. at 518. Because Emmett’s
Step 2 grievance showed that he did not alert prison officials to the claims in his
complaint, the district court did not err in dismissing the complaint for failure
to state a claim upon which relief may be granted, predicated on the failure to
exhaust administrative remedies. See Booth, 532 U.S. at 741 & n.6; Carbe, 492
F.3d at 328; Johnson, 385 F.3d at 517-18.
      “An appeal is frivolous if the result is obvious or the arguments of error are
wholly without merit.” Coghlan v. Starkey, 852 F.2d 806, 811 (5th Cir. 1988);
Emmett’s appeal is frivolous and is dismissed, and his motion to supplement the
record on appeal is denied.     See id.; 5 TH C IR. R. 42.2.   The district court’s
dismissal of Emmett’s complaint and our dismissal of this appeal as frivolous
count as two strikes for purposes of 28 U.S.C. § 1915(g).         See Adepegba v.
Hammons, 103 F.3d 383, 388 (5th Cir. 1996). Emmett has accumulated at least
one additional strike, based on the district court’s dismissal of his complaint in
Emmett v. Hawthorn, No. 4:10-CV-4034, 2010 WL 4394264, at *4 (S.D. Tex. Oct.
29, 2010), as malicious and for failure to state a claim upon which relief may be
granted. See Adepegba, 103 F.3d at 387.
      Because Emmett has accumulated at least three strikes for purposes of
§ 1915(g), he may no longer 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 § 1915(g). Additionally,
in light of Emmett’s history of filing frivolous pleadings, we warn Emmett that

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                                  No. 10-20772

frivolous, repetitive, or otherwise abusive filings will invite the imposition of
sanctions, including dismissal, monetary sanctions, and/or restrictions on his
ability to file pleadings in this court and any court subject to this court’s
jurisdiction. Emmett is further warned that, in order to avoid the imposition of
sanctions, he should review any pending appeals and actions and move to
dismiss any that are frivolous.
      APPEAL DISMISSED; MOTION DENIED; 28 U.S.C. § 1915(g) BAR
IMPOSED; SANCTION WARNING ISSUED.




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