United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 23, 2007
Charles R. Fulbruge III
Clerk
No. 06-20515
Summary Calendar
CORNELIUS R. WYATT,
Plaintiff-Appellant,
versus
JOHN DOE #1, Transportation TDCJ; JOHN DOE #2,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:06-CV-1343
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Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Cornelius R. Wyatt, Texas prisoner # 631802, appeals the
district court’s dismissal without prejudice of his civil rights
complaint pursuant to 42 U.S.C. § 1997e for failure to
demonstrate in his pleadings that he had exhausted his
administrative remedies. Wyatt argues that the district court
erred in dismissing his complaint because he filed Step 1 and
Step 2 grievances to which prison officials failed to respond.
The Supreme Court recently held “that failure to exhaust is
an affirmative defense under the [Prison Litigation Reform Act],
*
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this opinion should not be published and is not precedent except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. 06-20515
-2-
and that inmates are not required to specially plead or
demonstrate exhaustion in their complaints.” Jones v. Bock,
S. Ct. , 2007 WL 135890, *11 (2007). The district court erred
under Jones by requiring Wyatt to demonstrate, in his pleadings,
that he had exhausted his claims. See id. Even under this
circuit’s law prior to Jones, Wyatt satisfactorily pleaded
exhaustion by alleging that he had filed Step 1 and 2 grievances
and that the time for responding to the Step 2 grievance had
expired. See Underwood v. Wilson, 151 F.3d 292, 295-96 (5th Cir.
1998).
Accordingly, the district court’s judgment is vacated, and
the case is remanded for further proceedings.
VACATED AND REMANDED.