Gamage v. Cabe

* 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opinion should not be published and is not precedent except under the limited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
April 5, 2005
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-60563
Summary Calendar
MELVIN GAMAGE,
Plaintiff-Appellant,
versus
LORENZO CABE, Doctor,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 4:04-CV-27-M-D
Before JONES, BARKSDALE and PRADO, Circuit Judges.
PER CURIAM:*
Melvin Gamage, Mississippi prisoner #56705, has appealed
the district court’s order denying his application for leave to
proceed in forma pauperis (“IFP”) and ordering his 42 U.S.C. § 1983
case closed on the ground that he had failed to exhaust
administrative remedies by pursuing relief through the prison
grievance system. In his complaint, Gamage alleged that
Dr. Lorenzo Cabe was deliberately indifferent to his serious

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medical needs during the course of Dr. Cabe’s treatment of Gamage’s
in-grown toenail.
Prisoners who wish to seek relief under 42 U.S.C. § 1983
are required to exhaust their prison administrative remedies prior
to filing their complaint irrespective of the type of relief
sought. See 42 U.S.C. § 1997e(a); Ferrington v. Louisiana Dep’t of
Corr., 315 F.3d 529, 531 (5th Cir. 2002). Whether the district
court procedurally erred, or did not err, in denying IFP and
administratively closing the case on the basis of failure to
exhaust, compare Watson v. Ault, 525 F.2d 886, 891-92 (5th Cir.
1976), because the record shows that Gamage had not exhausted his
administrative remedies at the time he filed his complaint on
February 2, 2004, and because his deliberate-indifference claim is
without merit, the error, if any, was harmless. Alexander v.
Tippah County, Miss., 351 F.3d 626, 630 (5th Cir. 2003); Varnado v.
Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991). The judgment of the
district court is AFFIRMED.
AFFIRMED.

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