United States Court of Appeals
Fifth Circuit
IN THE UNITED STATES COURT OF APPEALS
F I L E D
FOR THE FIFTH CIRCUIT November 5, 2003
Charles R. Fulbruge III
Clerk
No. 03-40100
Summary Calendar
BRUCE LEE WILLIS,
Plaintiff-Appellant,
versus
DIRECTOR TEXAS DEPARTMENT OF CRIMINAL JUSTICE; WARDEN,
Telford Unit; DON KASPAR, Regional Program Administrator;
B. PIERCE, Regional Program Administrator; UNKNOWN WEST,
Chaplain; ET AL.,
Defendants-Appellees.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 5:02-CV-211
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Before HIGGINBOTHAM, DAVIS and PRADO, 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 complaints based on his failure to exhaust his prison
administrative remedies. The district court read Willis’s
complaints as stating that he had not exhausted and the court
*
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that this opinion should not be published and is not precedent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. 03-40100
-2-
dismissed because Willis did not provide documentation verifying
that he had exhausted.
However, while Willis checked on the complaint forms that he
did not exhaust both steps of the prison grievance procedure, he
asserted further that the prison refused to answer or return his
Step 2 grievances. If Willis filed Step 2 grievances as his
liberally-construed complaints allege, then he complied with
Texas’ two-step grievance procedure, and the grievances are
deemed exhausted when the time for the prison to respond to them
expired. See Powe v. Ennis, 177 F.3d 393, 394 (5th Cir. 1999).
The district court did not address whether Willis had
actually exhausted his administrative remedies, but dismissed the
complaints because Willis failed to provide proof of exhaustion.
The dismissal on that basis was erroneous because Willis was
entitled to rely upon his pleadings in asserting exhaustion. See
Underwood v. Wilson, 151 F.3d 292, 296 (5th Cir. 1998).
The judgment of the district court dismissing the complaint
for failure to exhaust administrative remedies is VACATED and the
case is REMANDED to the district court for further consideration
of the exhaustion issue.
Willis’ motion to amend or supplement the record on appeal
is DENIED.
VACATED AND REMANDED; MOTION DENIED.