### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 12-40532 Summary Calendar

AUTRY EUGENE RANDALL, JR., Plaintiff-Appellant

v. DR. C. NASH, Bowie C o unty Correctional Center (under contract with Community Education Centers, Texarkana, Texas); NURSE S. MICHAELS, Medical Department Supervisor, Bowie County Correctional Center (under contract with Community Education Cent e r s, Texarkana, Texas); DESIREE P ENNINGTON, Medical Records Clerk, Bowie County Correctional Center (under contract with Community Education Centers, Texarkana, Texas), Defendants-Appellees

Appeal from the United States District Court for the Eastern District of Texas USDC No. 5:10-CV-241

Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges. PER CURIAM: * Au t r y E ugene Randall, Jr., formerly a pretrial detainee in the Bowi e County C o rr e c tio n al C e nt e r/B i

- S t at e D e t e nti o n C e nt e r an d currently Texas state prisoner # 1676607, has filed a motion for l e av e t o proceed in forma pauperis U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Janu ary4, 201 3 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5 , the cour t has d ete rm inedt hat this op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t for th in 5 T H C IR

. R. 47.5 .4. Case: 12-40532 Document: 00512101062 Page: 1 Date Filed: 01/04/2013No. 12-40532

(“IFP” ) o n appeal from the district court’s judgment granting the defendants’ motions for summary judgment and dismissing Randall’s 42 U.S.C. § 1983 action. The district court denied Randall’s IFP motion, certifying, pursuant to 28 U.S.C. § 1915(a)(3) and Federal Rule of Appellate Procedure 24(a)(3), that the appeal was not taken in good faith. B y m o v ing for leave to proceed IFP, Randall is challenging the distri c t court’s certification decision. Baugh v. Taylor , 117 F.3d 197, 202 (5th Cir. 1997). To obtain permission to proceed IFP, Randall must show that he is a pauper and that he will present a nonfrivolous appellate issue. Carson v. Polley , 6 89 F.2d 562, 586 (5th Cir. 1982). Ran d a l l argues that, prior to filing his § 1983 action, he was unable to exhaust his administrative remedies due to fear, threats, and constant harassment. The exhaustion requirem e n t i s mandatory, and unexhausted claims may not be brought in court. Jones v. Bock , 549 U.S. 199, 211 (2007). There is no futility exception to the exhaustion r e q u irement. See Booth v. Churner , 5 3 2 U.S. 731, 741 n.6 (2001). Moreover, the summary judgment evidence presented below demon s t r a t es that Randall submitted three Step-1 grievances and a S t e p - 2 g r ievance on an unrelated issue, thus refuting his reasons for failing to exhaust. Next, Randall a r g u e s f or the first time that he could not exhaust his

a d m i nistrative remedies because grievance forms were impossible to obtain when he was in solitary confinement and that the grievance forms he managed to submit were obtained f r o m o t h er inmates. This court does not generally consider arguments raised for the first time on appeal, and we decline to do so here. See Jennings v. Owens , 602 F.3d 652, 657 n.7 (5th Cir. 2010); Leverette v. Louisville Ladder Co. , 183 F.3d 339, 342 (5th Cir. 199 9). Finally, Randall raises arguments regarding the merits of his claim. We need not consider these arguments because he did not exhaust his administrative remedies.
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Randall has not establish e d t h a t he will raise a nonfrivolous appellate issue. See Carson , 689 F.2d at 586. Accordingly, we deny the motion to proceed IFP on appeal, and we dismiss his appeal as frivolous. See Baugh , 117 F.3d at 202 n.24; 5 T H C I R

. R. 42.2. The dismissal of Randall’s appeal counts as a strike for purposes of 28 U.S.C. § 1915(g). Se e Adepegba v. Hammons , 103 F.3d 383, 3 8 7 ( 5 t h Cir. 1996). Randall is cautioned that if he accumulates three strikes under § 1915(g), h e w i ll not be allowed to proceed IFP in any civil action or

a ppeal filed while he is incarcerated or detained in any facility unles s h e “ i s under imminent danger of serious physical injury.” See § 1915(g). IFP MOTION DENIED; APPEAL DISMISSED; SANCTION WARNING ISSUED.

3 Case: 12-40532 Document: 00512101062 Page: 3 Date Filed: 01/04/2013