IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-10541 Conference Calendar

WARREN G. RAUCH,

Plaintiff-Appellant,

versus

RAYNALDO CASTRO; MARYANN MUNSELL; HUGH BRYAN; TOMMY E. PARKS; VICTOR BROOKS,

Defendants-Appellees.

-------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 2:02-CV-84 -------------------- December 12, 2002

Before JOLLY, JONES, and WIENER, Circuit Judges.

PER CURIAM:*

Warren G. Rauch, Texas prisoner # 736714 (“Rauch”), appeals

the dismissal of his pro se and in forma pauperis ("IFP") lawsuit

filed pursuant to

. The district court dismissed

the suit as frivolous because Rauch, by his own admission, had

failed to exhaust the prison grievance process prior to filing

suit, as required by 42 U.S.C. § 1997e, and therefore the suit

sought relief to which Rauch was not entitled.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-10541 -2-

The district court did not err in dismissing the complaint

as frivolous for failure to exhaust administrative remedies. See

Underwood v. Wilson,

(5th Cir. 1997). The

district court correctly ordered that dismissal was with

prejudice to refiling with IFP status. See Underwood,

.

This appeal is without arguable merit and is thus frivolous.

See Howard v. King,

(5th Cir. 1983).

Because the appeal is frivolous, it is DISMISSED. See 5TH CIR.

R. 42.2.

The district court’s dismissal as frivolous and this court’s

dismissal as frivolous count as two strikes for purposes of the

three-strikes provision. See

(g); see Adepegba

v. Hammons,

(5th Cir. 1996). Rauch is WARNED

that should he accumulate three strikes he will be unable to

proceed IFP in any civil action or appeal while he is

incarcerated or detained in any facility unless he is under

imminent danger of serious physical injury. See

(g).

APPEAL DISMISSED; SANCTION WARNING ISSUED.