Filed: Jun. 20, 2003
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT June 19, 2003 Charles R. Fulbruge III Clerk No. 02-11392 Summary Calendar JEROMY D. BRAY, Plaintiff-Appellant, versus J. EDWARDS, Warden, Defendant-Appellee. - Appeal from the United States District Court for the Northern District of Texas USDC No. 1:02-CV-199 - Before DAVIS, JONES and STEWART, Circuit Judges. PER CURIAM:* Jeromy D. Bray, Texas prisoner # 919964, appeals the distric
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT June 19, 2003 Charles R. Fulbruge III Clerk No. 02-11392 Summary Calendar JEROMY D. BRAY, Plaintiff-Appellant, versus J. EDWARDS, Warden, Defendant-Appellee. - Appeal from the United States District Court for the Northern District of Texas USDC No. 1:02-CV-199 - Before DAVIS, JONES and STEWART, Circuit Judges. PER CURIAM:* Jeromy D. Bray, Texas prisoner # 919964, appeals the district..
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United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 19, 2003
Charles R. Fulbruge III
Clerk
No. 02-11392
Summary Calendar
JEROMY D. BRAY,
Plaintiff-Appellant,
versus
J. EDWARDS, Warden,
Defendant-Appellee.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 1:02-CV-199
--------------------
Before DAVIS, JONES and STEWART, Circuit Judges.
PER CURIAM:*
Jeromy D. Bray, Texas prisoner # 919964, appeals the district
court’s dismissal of his 42 U.S.C. § 1983 action seeking an
injunction for his protection based on his allegations of an
ongoing extortion and protection racket involving violence
perpetrated upon white inmates such as himself, with the complicit
knowledge and assistance of the prison staff.
*
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this opinion should not be published and is not precedent except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.
No. 02-11392
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Bray argues that the district court abused its discretion in
dismissing his case. He contends that the complaint form he has in
his files showed that he had checked the “no” box regarding
exhaustion of administrative remedies and that he must have made a
clerical error in checking the “yes” box on the copy he filed in
district court. He contends that when he received the district
court’s order of October 25, he filed a response explaining why he
had filed the lawsuit without exhausting administrative remedies,
but that this response never reached the court. Bray explains that
he did not file a grievance out of fear of retaliation. Regarding
the district court’s ruling that he had failed to state a claim,
Bray asserts that he believes that he is at serious risk of
personal harm because he is a white inmate.
Contrary to the district court’s conclusion that Bray had
failed to state a claim because he had alleged no personal harm,
Bray’s allegation that the type of extortion and protection racket
to which inmate Panneck was subjected goes on constantly with the
knowledge of the prison officers, and that he himself is a member
of the class of inmate which is preyed upon, is a sufficient
allegation of harm to establish standing for him to seek injunctive
relief. Smith v. Arkansas Department of Correction, 103 F.3d 637,
643-44 (8th Cir. 1996). Thus, the district court erred in
determining that Bray failed to state a claim or that his complaint
was frivolous. Black v. Warren,
134 F.3d 732, 733-34 (5th Cir.
1998) (de novo review).
No. 02-11392
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However, as also noted in Smith, it is this very type of claim
for injunctive relief for which exhaustion of administrative
remedies within the prison grievance system is so important. 103
F.3d at 647. “When a prison inmate seeks injunctive relief, a
court need not ignore the inmate’s failure to take advantage of
adequate prison procedures, and an inmate who needlessly bypasses
such procedures may properly be compelled to pursue them.” Farmer
v. Brennan,
511 U.S. 825, 847 (1994).
If, as he now claims, Bray deliberately bypassed the prison
grievance procedures because he was afraid of retaliation, he could
and should have stated this in his complaint. If, as he now
claims, the district court did not receive his response to its
October 25 order requiring him to provide proof of exhaustion, he
could and should have resubmitted his response in the form of a
postjudgment motion for reconsideration in the district court.
Based on the record before the district court at the time it
dismissed Bray’s action, the district court did not err in
dismissing Bray’s complaint for failure to exhaust. Powe v. Ennis,
177 F.3d 393, 394 (5th Cir. 1999) (de novo review). Because Bray
was proceeding in forma pauperis (IFP) in the district court, the
dismissal of the complaint with prejudice for purposes of
proceeding IFP was within the discretion of the district court.
See Underwood v. Wilson,
151 F.3d 292, 296 (5th Cir. 1998). Such
a dismissal is without prejudice to refiling a fee-paid complaint
making the same allegations.
Id.
No. 02-11392
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Bray argues that the district court abused its discretion by
imposing such harsh sanctions in the form of $100, a dismissal with
prejudice, and a strike under 28 U.S.C. § 1915(g). The district
court imposed sanctions based on its determination that Bray had
deliberately attempted to mislead the court by checking the box
indicating that administrative remedies had been exhausted, when it
was clear from the date of the incident and the date of filing the
complaint that it was impossible for Bray to have exhausted his
administrative remedies through the prison grievance procedures.
False statements by prisoners in their pleadings may result in
sanctions under FED. R. CIV. P. 11(c). Hatchet v. Nettles, 201 F.3d
651, 654 (5th Cir. 2000). The district court warned Bray that it
would sanction him for providing a false statement if he did not
provide proof of exhaustion. When Bray did not respond, the court
did exactly that. Based on the record before the district court,
the court did not abuse its discretion in imposing a monetary
sanction of $100. See Mendoza v. Lynaugh,
989 F.2d 191, 195 (5th
Cir. 1993) (abuse of discretion standard of review). Bray made no
attempt to explain to the district court that he had mailed a
response which he now alleges did not reach the court.
As for the district court’s determination that the dismissal
counts as a strike under 28 U.S.C. § 1915(g), that section provides
that to count as a strike, the dismissal must be on the grounds
that the action is “frivolous, malicious, or fails to state a claim
upon which relief may be granted.” Bray’s claim for injunctive
No. 02-11392
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relief based upon his allegations of an extortion and protection
racket involving assaults on white inmates, which is allowed to go
on with the knowledge of the prison officers, does state a claim
and is not frivolous. However, the district court’s dismissal with
prejudice of Bray’s action for failure to exhaust administrative
remedies, based upon the district court’s finding that he made a
false representation, falls within the “malicious” category
justifying a strike.
AFFIRMED.
