Sammer Yasin v. Travis Bragg , 460 F. App'x 345 ( 2012 )


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  •      Case: 11-50459        Document: 00511752050         Page: 1     Date Filed: 02/08/2012
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT  United States Court of Appeals
    Fifth Circuit
    FILED
    February 8, 2012
    No. 11-50459
    Summary Calendar                        Lyle W. Cayce
    Clerk
    SAMMER YASIN,
    Plaintiff-Appellant
    v.
    WARDEN TRAVIS BRAGG; CASE MANAGER PARKS; COUNSELOR
    ROSALES,
    Defendants-Appellees
    Appeal from the United States District Court
    for the Western District of Texas
    USDC No. 3:11-CV-174
    Before JONES, Chief Judge, and HAYNES and GRAVES, Circuit Judges.
    PER CURIAM:*
    Sammer Yasin, federal prisoner # 60562-066, appeals the district court’s
    sua sponte dismissal of his Bivens1 action for failure to state a claim based on
    Yasin’s failure to exhaust his administrative remedies pursuant to 42 U.S.C.
    § 1997e(a). Yasin contends that his failure to exhaust was due to interference
    by prison officials, that he should have been given notice and an opportunity to
    *
    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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
    1
    Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics, 
    403 U.S. 388
     (1971).
    Case: 11-50459   Document: 00511752050        Page: 2   Date Filed: 02/08/2012
    No. 11-50459
    address the exhaustion issue prior to the dismissal of his complaint, and that
    there is now no administrative remedy available because the time for grieving
    has elapsed.
    We review the district court’s dismissal de novo. Powe v. Ennis, 
    177 F.3d 393
    , 394 (5th Cir. 1999). Yasin’s complaint alleged that he requested a grievance
    form from the prison counselor but was never given one. The district court’s
    determination that Yasin had not exhausted his administrative remedies was
    based on the inference that Yasin had made only a single request and a finding
    that Yasin had not alleged that prison officials had refused to give Yasin the
    appropriate form. Yasin was not required to plead any allegations with respect
    to exhaustion. See Jones v. Bock, 
    549 U.S. 199
    , 216 (2007). As it was not
    crystalline from the face of Yasin’s complaint that he had failed to exhaust his
    administrative remedies, the district court’s dismissal on that ground was
    premature. See id.; Carbe v. Lappin, 
    492 F.3d 325
    , 328 (5th Cir. 2007); Holloway
    v. Gunnell, 
    685 F.2d 150
    , 154 (5th Cir. 1982).
    We therefore VACATE and REMAND for service of the defendants and
    subsequent proceedings.
    2
    

Document Info

Docket Number: 11-50459

Citation Numbers: 460 F. App'x 345

Judges: Graves, Haynes, Jones, Per Curiam

Filed Date: 2/9/2012

Precedential Status: Non-Precedential

Modified Date: 8/5/2023