Willis v. Director Texas Department of Criminal Justice Institutional Division , 79 F. App'x 652 ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS October 30, 2003
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 03-40992
Summary Calendar
BRUCE LEE WILLIS,
Plaintiff-Appellant,
versus
DIRECTOR TEXAS DEPARTMENT OF CRIMINAL JUSTICE INSTITUTIONAL
DIVISION; WARDEN, TELFORD UNIT; UNKNOWN TAYLOR, Lieutenant;
UNKNOWN BURGESS, Sergeant; UNKNOWN SMITH, Sergeant,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 5:03-CV-65
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Before SMITH, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Bruce Lee Willis, Texas prisoner #717354, appeals the district
court’s dismissal without prejudice of his 42 U.S.C. § 1983
complaint for failure to exhaust administrative remedies. Willis
argues that the district court abused its discretion in dismissing
his complaint and that its judgment should be reversed and his case
remanded for further proceedings.
*
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this opinion should not be published and is not precedent except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.
The district court dismissed Willis’ complaint pursuant to 42
U.S.C. § 1997e because he failed to provide documentation verifying
his allegations that he had exhausted his administrative remedies.
As set forth in our decision in Underwood v. Wilson, 151 F.3d 292,
296 (5th Cir. 1998), however, “[d]ismissal under § 1997e is made on
pleadings without proof,” and when “the plaintiff has alleged
exhaustion with sufficient specificity, lack of admissible evidence
in the record does not form the basis for dismissal.”
Here, although Willis was unable to produce a copy of his
Step 2 grievance form, he specifically alleged that he exhausted
both steps of the grievance procedure. In explaining why he was
unable to submit a copy of the form, Willis never denied that he
filed a Step 2 grievance form and offered an explanation regarding
why he was unable to produce a copy of the form. Because Willis
alleged exhaustion with sufficient specificity, Underwood requires
that the district court’s judgment be VACATED and the case REMANDED
for further proceedings. The district court is not precluded from
revisiting the exhaustion issue “based upon a response by the
defendants.” Days v. Johnson, 322 F.3d 863, 868 (5th Cir. 2003).
VACATED AND REMANDED.
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