United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 28, 2006
Charles R. Fulbruge III
Clerk
No. 05-51158
Summary Calendar
FREDDIE EDWARDS, ET AL.,
Plaintiffs,
FREDDIE EDWARDS,
Plaintiff-Appellant,
versus
DENISE DeSHIELDS, Medical Director; WILLIAM CLARYCE,
Health Administrator; SHERI TALLEY, Doctor,
Defendants-Appellees.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 4:05-CV-51
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Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Freddie Robin Edwards, Texas inmate # 658647, seeks to
proceed in forma pauperis (IFP) on appeal from the district
court’s sua sponte dismissal of his civil rights complaint,
without prejudice, for failure exhaust administrative remedies,
under 42 U.S.C. § 1997e(a). Edwards contends that the two Step 1
grievances and one Step 2 grievance appeal he filed were
*
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this opinion should not be published and is not precedent except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. 05-51158
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sufficient to exhaust his claims that the defendants were
deliberately indifferent to his serious medical needs. Edwards
alleged in his complaint that prison officials had refused to
replace his work boots, which were too small and were causing
pain and swelling, and that they instead gave him Ibuprofen,
which caused several serious side effects.
By moving for leave to proceed IFP, Edwards is challenging
the district court’s certification that his appeal was not taken
in good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir.
1997); 28 U.S.C. § 1915(a)(3); FED. R. APP. P. 24(a)(3). We
review de novo a dismissal for failure to exhaust under
§ 1997e(a). Days v. Johnson, 322 F.3d 863, 866 (5th Cir. 2003).
Texas prisoners must exhaust a “two-step formal grievance
process.” See Johnson v. Johnson, 385 F.3d 503, 515 (5th Cir.
2004). The district court concluded that Edwards had not
exhausted his claims because his initial Step 1 grievance raised
only a claim about the work boots whereas his Step 2 appeal
instead raised the matter of the side effects of the Ibuprofen.
A review of the Step 2 appeal, however, reflects that Edwards
raised the work-boots issue as well, thus exhausting that claim.
Edwards also filed a second Step 1 “emergency” grievance,
explicitly alleging the Ibuprofen side effects, although not
directly linking these adverse reactions to the medication. The
district court determined that this “grievance was never even
properly filed.” Ordinarily, “‘dismissal under § 1997e is made
No. 05-51158
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on the pleadings without proof.’” Days, 322 F.3d at 866
(citation omitted). Edwards asserted in his complaint that he
did properly file the second Step 1 “emergency” grievance,
explaining that the grievance was not forwarded after he was
transferred to another prison and that prison officials simply
failed to respond to it. Because “[a] prisoner’s administrative
remedies are deemed exhausted when a valid grievance has been
filed and the state’s time for responding has expired,” Powe v.
Ennis, 177 F.3d 393, 394 (5th Cir. 1999), Edwards’s allegations
regarding exhaustion were sufficient to avert sua sponte
dismissal with respect to his side-effects claim as well.
For the reasons cited above, IT IS ORDERED that Edwards’s
motion to proceed IFP is GRANTED. The district court’s
certification decision is VACATED, and the case is REMANDED for
further proceedings not inconsistent with this opinion. We note
that this opinion “does not preclude a revisiting of [the
exhaustion] issue based upon a response by the defendants.” See
Days, 322 F.3d at 868.
Edwards’s motion for appointment of counsel is DENIED.