Marlin v. Young

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED No. 06-30663 August 8, 2007 Summary Calendar Charles R. Fulbruge III Clerk MICHAEL D MARLIN Plaintiff-Appellant v. J YOUNG; S MARLER; K EDENFIELD; ASSOCIATE WARDEN MCMEAL; SCARLET LUSK; T VOICENE; S MILLION Defendants-Appellees Appeal from the United States District Court for the Western District of Louisiana USDC No. 2:05-CV-2172 Before KING, DAVIS and CLEMENT, Circuit Judges. PER CURIAM:* Michael D. Marlin, federal prisoner # 08387-003, appeals the district court’s dismissal without prejudice of his Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), complaint for failure to exhaust administrative remedies. The district court based its decision on Marlin’s complaint. Marlin argues that he fulfilled the exhaustion requirement. * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 06-30663 After the district court’s decision, the Supreme Court held “that failure to exhaust is an affirmative defense under the [Prison Litigation Reform Act], and that inmates are not required to specially plead or demonstrate exhaustion in their complaints.” Jones v. Bock, 127 S. Ct. 910, 921 (2007). Under Jones, the district court erred by dismissing the case because Marlin did not demonstrate in his pleadings that he had exhausted his claims. Accordingly, the district court’s judgment is vacated, and the case is remanded for further proceedings. VACATED AND REMANDED. 2