Hill v. Epps, et al

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
February 23, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-60016
Conference Calendar
RUSSELL KEITH HILL,
Plaintiff-Appellant,
versus
CHRISTOPHER B. EPPS, COMMISSIONER,
MISSISSIPPI DEPARTMENT OF CORRECTIONS;
MICHAEL A. WILSON, Superintendent;
J. J. STREETER, Warden, Unit 32,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 4:04-CV-332
--------------------
Before GARZA, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Russell Keith Hill, Mississippi prisoner # L3506, has filed
a motion to proceed in forma pauperis (IFP) on appeal,
challenging the district court’s certification that his appeal
is not taken in good faith. See Baugh v. Taylor, 117 F.3d 197,
199-202 (5th Cir. 1997). The district court dismissed the suit
for failure to exhaust, pursuant to 42 U.S.C. § 1997e, and denied
permission to proceed IFP on appeal.

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No. 05-60016
-2-
Hill has not demonstrated any nonfrivolous ground for
appeal. He argues that sua sponte dismissal was error, that
failure to exhaust is an affirmative defense that must be raised
by the defendants, and that whether he has exhausted his
administrative remedies cannot be determined from the face of his
complaint. These arguments are without merit; the face of Hill’s
complaint states that he had not exhausted his administrative
remedies prior to filing suit, mandating dismissal. See
§ 1997e(a); Wendell v. Asher, 162 F.3d 887, 889-90 (5th Cir.
1998); Underwood v. Wilson, 151 F.3d 292, 292-93 (5th Cir. 1998).
Hill also asserts that he could not have grieved his
complaint about violations that occurred while he was detained at
the Mississippi State Penitentiary at Parchman following his
transfer to a private prison facility. However, Hill offers no
explanation regarding why he failed to avail himself of the
grievance procedure at Parchman prior to his transfer. His
complaint concerns an eight-month period during which time he was
allegedly denied sanitary living conditions and medical care.
Hill was aware of the basis for his grievance during that time
period but did not utilize the administrative remedies available
at Parchman to seek redress. His subsequent transfer to a
private prison facility does not excuse his failure to exhaust,
and the district court thus did not err in dismissing his
complaint. See § 1997e.

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No. 05-60016
-3-
Hill’s IFP motion is denied, and the appeal is dismissed as
frivolous. See Baugh, 117 F.3d at 202; 5TH CIR. R. 42.2. Prior
to this proceeding, Hill had two strikes for purposes of the
three-strikes provision of 28 U.S.C. § 1915(g). See Hill v.
Schwartz, No. 03-60593 (5th Cir. April 19, 2004) (affirming the
district court’s dismissal for failure to state a claim of Hill’s
§ 1983 lawsuit) (unpublished); Hill v. Mississippi Board of
Certified Court Reporters, No. 04-61077 (affirming the district
court’s dismissal of Hill’s § 1983 lawsuit for failure to state a
claim and issuing sanctions warning) (unpublished); see also
Adepegba v. Hammons, 103 F.3d 383, 385-87 (5th Cir. 1996). The
dismissal of the instant appeal counts as Hill’s third strike.
See Adepegba, 103 F.3d at 385. Because Hill has now accumulated
three strikes, he is barred from proceeding IFP in any civil
action or appeal brought while he is incarcerated or detained in
any facility unless he is under imminent danger of serious
physical injury. See id.; § 1915(g).
IFP MOTION DENIED; APPEAL DISMISSED; SANCTION IMPOSED.

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