IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-40449
Summary Calendar
BENNIE BOONE,
Plaintiff-Appellant-Cross-Appellee,
versus
DEWAYNE CANNON; SHERDONA WALKER; ERIC NELSON;
JOHN CLOYE JOHNSON; WAYNE TEMPELTON,
Defendants-Appellees-Cross-Appellants.
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Appeals from the United States District Court
for the Eastern District of Texas
USDC No. 5:01-CV-111
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December 16, 2002
Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
Bennie Boone (prisoner # 87102) appeals the district court’s
dismissal of his civil rights complaint without prejudice for
failure to exhaust administrative remedies. 42 U.S.C.
§ 1997e(a). A prisoner is required to exhaust administrative
remedies before filing a 42 U.S.C. § 1983 suit. 42 U.S.C.
§ 1997e(a); Wendell v. Asher, 162 F.3d 887, 890 (5th Cir. 1998).
“Dismissal under [42 U.S.C.] § 1997e is made on pleadings without
*
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that this opinion should not be published and is not precedent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. 02-40449
-2-
proof. As long as the plaintiff has alleged exhaustion with
sufficient specificity, lack of admissible evidence in the record
does not form the basis for dismissal.” Underwood v. Wilson, 151
F.3d 292, 296 (5th Cir. 1998).
Boone did not allege with sufficient specificity in his
district court pleadings that he exhausted his administrative
remedies through Step 2 of the Texas inmate grievance procedure.
See Wendell, 162 F.3d at 890; Underwood, 151 F.3d at 296. This
case does not present a rare instance warranting an exception to
the exhaustion requirement. Underwood, 151 F.3d at 296. The
district court thus did not err in dismissing Boone’s 42 U.S.C.
§ 1983 complaint for failure to exhaust administrative remedies.
The district court’s judgment is AFFIRMED.
Boone’s motion for the appointment of counsel is DENIED.
AFFIRMED; MOTION FOR THE APPOINTMENT OF COUNSEL DENIED.