IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-40532

Summary Calendar

AUTRY EUGENE RANDALL, JR.,

Plaintiff-Appellant

v.

DR. C. NASH, Bowie County 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 Centers, Texarkana, Texas); DESIREE

PENNINGTON, 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:*

Autry Eugene Randall, Jr., formerly a pretrial detainee in the Bowie

County Correctional Center/Bi-State Detention Center and currently Texas state

prisoner # 1676607, has filed a motion for leave to proceed in forma pauperis

United States Court of Appeals

Fifth Circuit

F I L E D

January 4, 2013

Lyle W. Cayce

Clerk

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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No. 12-40532

(“IFP”) on 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.

By moving for leave to proceed IFP, Randall is challenging the district

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, 689 F.2d

562, 586 (5th Cir. 1982).

Randall 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 requirement is 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 requirement. See Booth v.

Churner, 532 U.S. 731, 741 n.6 (2001). Moreover, the summary judgment

evidence presented below demonstrates that Randall submitted three Step-1

grievances and a Step-2 grievance on an unrelated issue, thus refuting his

reasons for failing to exhaust.

Next, Randall argues for the first time that he could not exhaust his

administrative 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 from other 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. 1999).

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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No. 12-40532

Randall has not established that 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; 5TH CIR. R. 42.2. The dismissal of Randall’s appeal counts as a strike

for purposes of 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383,

387 (5th Cir. 1996). Randall is cautioned that if he accumulates three strikes

under § 1915(g), he will not be allowed to proceed IFP 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).

IFP MOTION DENIED; APPEAL DISMISSED; SANCTION WARNING

ISSUED.

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