United States Court of Appeals

for the Fifth Circuit ____________

No. 23-20510

____________

Dwayne Rivens-Baker, Jr., 

Plaintiff—Appellant, 

versus

UTMB Nurse Bintaben Shah; Jerry Sanchez, Warden; 

Latoya Bradley; Dayo Fasola; Emezie Onyeahialam; 

Michael Onwusa, 

Defendants—Appellees. 

______________________________

Appeal from the United States District Court 

for the Southern District of Texas

USDC No. 4:22-CV-2462

______________________________

Before Stewart, Graves, and Oldham, Circuit Judges.

Per Curiam:*

Dwayne Rivens-Baker, Jr., Texas prisoner # 2064290, moves for leave 

to proceed in forma pauperis (IFP) on appeal from the summary judgment 

dismissal of his 42 U.S.C. § 1983 action. 

_____________________

* This opinion is not designated for publication. See 5th Cir. R. 47.5.

United States Court of Appeals

Fifth Circuit

FILED

March 27, 2024

Lyle W. Cayce

Clerk

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Rivens-Baker challenges the district court’s determination that he 

failed to exhaust administrative remedies for his excessive force claims 

against Latoya Bradley, Dayo Fasola, Emezie Onyeahialam, and Michael 

Onwusa. He argues that he exhausted all of the remedies available to him

because his grievances were interfered with and were not processed or 

returned as required under the grievance policies of the Texas Department 

of Criminal Justice (TDCJ). However, to exhaust his administrative 

remedies, Rivens-Baker was required to pursue his grievances through both 

Step 1 and Step 2, even if he failed to receive a proper response from the 

TDCJ. See Johnson v. Johnson, 385 F.3d 503, 515 (5th Cir. 2004); see also 

Booth v. Churner, 532 U.S. 731, 741 n.6 (2001). Moreover, the record does 

not contain, and Rivens-Baker does not point to, any grievances filed through 

Step 2 concerning the excessive force incident at issue. Accordingly, RivensBaker has not shown that he will raise a nonfrivolous issue regarding the 

district court’s exhaustion determination. See Howard v. King, 707 F.2d 215, 

220 (5th Cir. 1983).

Additionally, Rivens-Baker challenges the district court’s 

determination that his deliberate indifference claim against Nurse Bintaben 

Shah was refuted by a video of the incident and documentary evidence. He 

contends that this evidence supports his arguments. However, the district 

court correctly described the videos and medical records provided by the 

TDCJ, none of which support Rivens-Baker’s allegations. See Scott v. Harris, 

550 U.S. 372, 378-81 (2007); Carnaby v. City of Hous., 636 F.3d 183, 187 (5th 

Cir. 2011). In addition, although Rivens-Baker conclusorily asserts that he 

was denied discovery from “medical defendant,” he does not identify this 

defendant or explain how this discovery would have supported his claims. 

Thus, he has not shown that he will raise a nonfrivolous issue regarding this 

claim. See Howard, 707 F.2d at 220.

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In his final point, Rivens-Baker argues that the district court erred in 

denying his motions for the appointment of counsel. He concedes that “the 

complexity of [his] case was not great,” but contends that his ability to 

investigate the case was greatly hindered because he was “back [and] forth 

on medical chain without legal materials” and because his “mental health 

diagnosis [made] litigation extremely hard.” Rivens-Baker has not shown 

that he will raise a nonfrivolous issue, as he has not identified any exceptional 

circumstances warranting the appointment of counsel. See Akasike v. 

Fitzpatrick, 26 F.3d 510, 512 (5th Cir. 1994); Cooper v. Sheriff, Lubbock Cnty., 

929 F.2d 1078, 1084 (5th Cir. 1991); Howard, 707 F.2d at 220.

Rivens-Baker does not challenge the district court’s determinations 

that (1) his claims against the defendants in their official capacities were 

barred by the Eleventh Amendment; (2) his claim that Shah falsified records 

did not allege a constitutional violation as required under § 1983; and (3) his 

claims against Assistant Warden Jerry Sanchez for failure to investigate and 

for failure to properly train staff did not survive summary judgment. 

Accordingly, he has abandoned any challenge to these determinations. See 

Brinkmann v. Dallas Cnty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 

1987). 

Because Rivens-Baker fails to show that his appeal involves a 

nonfrivolous issue, his motion to proceed IFP is DENIED, and the appeal 

is DISMISSED as frivolous. See Baugh v. Taylor, 117 F.3d 197, 202 n.24 

(5th Cir. 1997); Howard, 707 F.2d at 220; 5th Cir. R. 42.2. His motion for 

the appointment of counsel also is DENIED.

This dismissal of this appeal as frivolous counts as a strike under 28 

U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir. 

1996), abrogated in part on other grounds by Coleman v. Tollefson, 575 U.S. 532, 

537 (2015). Rivens-Baker is WARNED that if he accumulates three strikes, 

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he will be barred from proceeding 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).

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