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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-20761

Summary Calendar

BOYCE JOHNSON,

Plaintiff-Appellant

v.

CORRECTIONAL OFFICER; DIANA KUKUA, Warden; BRAD LIVINGSTON,

Executive Director,

Defendants-Appellees

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:08-CV-2054

Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Boyce Johnson, Texas prisoner # 1457313, has appealed the district court’s

judgment dismissing his civil rights complaint pursuant to 42 U.S.C. § 1983, in

which Johnson asserted that his constitutional rights were violated when he was

struck on the hand by a female correctional officer while he was incarcerated at

the Byrd Unit of the Texas Department of Criminal Justice, Correctional

Institutions Division (TDCJ). Johnson alleged that the incident occurred on

United States Court of Appeals

Fifth Circuit

F I L E D

August 20, 2009

Charles R. Fulbruge III

Clerk
No. 08-20761

2

November 18, 2007, and he named as defendants a female correctional officer

whose name was unconfirmed; Diana Kukua, Warden of the Byrd Unit; and

Brad Livingston, Executive Director of the TDCJ. Johnson alleged that the

officer’s assault caused him severe injury, that the officer’s actions were against

prison policies, that Warden Kukua allowed the officer to strike him, and that

Livingston did not properly monitor the actions of “dangerous guards.”

On appeal, Johnson challenges the district court’s determination that he

failed to properly exhaust his claims by failing to file his first Step 1 grievance

within 15 days of the alleged incident. He contends that he did not file his

grievance within 15 days of the incident because he was not certain of the

officer’s name and because he was transferred from the Byrd facility within days

of the incident.

Under the Prison Litigation Reform Act of 1995 (PLRA), 42 U.S.C.

§ 1997e(a), “[n]o action shall be brought with respect to prison conditions under

section 1983 of this title, or any other Federal law, by a prisoner confined in any

jail, prison, or other correctional facility until such administrative remedies as

are available are exhausted.” We take “a strict approach” to the exhaustion

requirement, see Days v. Johnson, 322 F.3d 863, 866 (5th Cir. 2003), and we

review a district court’s dismissal of a prisoner’s section 1983 complaint for

failure to exhaust de novo. Carbe v. Lappin, 492 F.3d 325, 327 (5th Cir. 2007).

Proper exhaustion requires that the prisoner not only pursue all available

avenues of relief but also comply with all administrative deadlines and

procedural rules. Woodford v. Ngo, 548 U.S. 81, 89-93 (2006). A prisoner cannot

satisfy the exhaustion requirement “by filing an untimely or otherwise

procedurally defective administrative grievance or appeal.” Id. at 83-84. A

district court may as part of its initial screening process dismiss a complaint for

failure to state a claim based upon the plaintiff’s failure to exhaust only when

“the complaint itself makes clear that the prisoner has failed to exhaust.” Carbe,

492 F.3d at 328.
No. 08-20761

3

Texas prisoners must file their Step 1 grievance within 15 days of the

alleged incident. See Wendell v. Asher, 162 F.3d 887, 891 (5th Cir. 1998),

overruled by implication on other grounds by Jones v. Bock, 549 U.S. 199, 199

(2007). Johnson’s complaint makes clear that he failed to file his grievance

within the time required under the TDCJ rules, and therefore the district court

did not err in considering whether to dismiss Johnson’s claims for failure to

exhaust as part of its initial screening process. See id. Further, because

Johnson has failed to demonstrate sufficient excuse for failing to properly

exhaust his administrative remedies, the district court did not err in dismissing

Johnson’s complaint pursuant to section 1997e(a).

The dismissal by the district court of Johnson’s section 1983 complaint

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

Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). Johnson is CAUTIONED that

if he accumulates three strikes, he may not thereafter 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).

Accordingly, the judgment of the district court is AFFIRMED; SANCTION

WARNING ISSUED.