United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
October 26, 2005
FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-41331
Summary Calendar
WILLIS FLOYD WILEY,
Plaintiff-Appellant,
versus
JACK MANGRUM; DOROTHY BURNS; WARNER LUMPKINS; T.M. ATKINS; D.
HARDY; NURSE CHERIAN; VONDA RAFTER; FRANCISCO RODRIGUEZ; JAMES
WHEELER; TIMOTHY NEW; JOHN AGBONKONKON; CARLA PARKS; OFFICER
SIVERAND; DOCTOR OWUSU,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Texas
(3:03-CV-872)
Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
Willis Floyd Wiley, Texas prisoner # 753383, appeals, pro se,
the dismissal with prejudice of his 42 U.S.C. § 1983 complaint for
failure to exhaust administrative remedies, pursuant to 42 U.S.C.
§ 1997e. The district court found Wiley had not established
exhaustion because the Steps 1 and 2 grievances he provided in
support of his grievance had been returned to him for failure 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this opinion should not be published and is not precedent except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.
comply with prison procedures. Wiley contends for the first time
on appeal that he exhausted because he resubmitted his Step 1
grievance.
Generally, evidentiary contentions of this type not presented
in district court will not be considered for the first time on
appeal. Stokes v. Emerson Elec. Co., 217 F.3d 353, 358 n.19 (5th
Cir. 2000). In any event, Wiley has not established the district
court erred in dismissing his complaint for failure to exhaust; he
has not shown he exhausted his administrative remedies by filing a
Step 1 and Step 2 grievance. See Johnson v. Johnson, 385 F.3d 503,
515 (5th Cir. 2004); Powe v. Ennis, 177 F.3d 393, 394 (5th Cir.
1999).
Accordingly, the judgment is AFFIRMED, but it is MODIFIED to
reflect the dismissal of these claims WITH PREJUDICE for purposes
of proceeding in an in forma pauperis proceeding pursuant to 28
U.S.C. § 1915(d). Therefore, if Wiley exhausts his administrative
remedies, he can present his § 1983 claims again, but he may not
proceed in forma pauperis to do so. See Underwood v. Wilson, 151
F.3d 292, 296 (5th Cir. 1998), cert. denied, 526 U.S. 1133 (1999).
AFFIRMED AS MODIFIED
2