No. 99-60902

-1-

 

* 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that this opinion should not be published and is not precedent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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 99-60902

Summary Calendar

 

LARRY ROCHELL SMITH,

Plaintiff-Appellant,

versus

DON GRANT, Warden of Delta Correctional Facility; OHAMZAH BRIMAH,

DR, Doctor and Psychiatrist at Delta Correctional Facility,

Defendants-Appellees.

--------------------

Appeal from the United States District Court

for the Northern District of Mississippi

USDC No. 4:99-CV-272-D-D

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May 4, 2000

Before KING, Chief Judge, and POLITZ and DENNIS, Circuit Judges.

PER CURIAM:*

Larry Rochell Smith, Mississippi prisoner # 89754, appeals

the district court’s denial of IFP and closure of his case for

failure to provide evidence of exhaustion of administrative

remedies. Smith’s motion to supplement and annex a page in his

brief is GRANTED.

Smith alleged in his complaint that he is a diagnosed

schizophrenic; that Delta Correctional Facility (DCF) is not a

medically adequate or proper facility in which to incarcerate
No. 99-60902

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him; and that his complaints that the living conditions at DCF

and his work requirements are aggravating his mental condition

and causing him pain and suffering are being ignored. Smith

alleged that he had complied, or had made a good faith effort to

comply, with the grievance procedures in place at DCF and that he

had been frustrated in his attempts. He attached copies of his

grievances and the responses thereto, including a response which

stated that the Administrative Remedy Procedure at DCF only

applied to complaints concerning “Time and Classification.” The

district court entered an order denying Smith IFP status. The

district court stated that “until evidence of exhaustion of the

Administrative Remedy Program is provided plaintiff may not

proceed with this case,” and ordered the case closed.

Smith argues on appeal that the district court erred in

dismissing his case for failure to exhaust. He asserts that he

has provided evidence of exhaustion in the form of copies of his

grievances. He seeks to have his complaint reinstated and his

case remanded to the district court for further proceedings.

Section 1997e(a), as amended in 1996, provides:

No action shall be brought with respect to

prison conditions under section 1983 of this

title, or any other Federal law, by a

prisoner confined in any jail, prison, or

other correctional facility until such

administrative remedies as are available are

exhausted.

“Dismissal under § 1997(e) is made on pleadings without proof. 

As long as the plaintiff has alleged exhaustion with sufficient

specificity, lack of admissible evidence in the record does not
No. 99-60902

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form the basis of dismissal.” Underwood v. Wilson, 151 F.3d 292,

296 (5th Cir. 1998), cert. denied, 119 S. Ct. 1809 (1999).

Smith alleged that he had exhausted his administrative

remedies. Further, he provided copies of grievances and

responses, including a response which indicates that

administrative remedies are not “available” for the claims which

he seeks to assert in this complaint because they do not concern

Time or Classification.

The district court erred in denying IFP and closing this

case for failure to exhaust. Underwood, 151 F.3d at 296. The

district court’s order is VACATED and this case is REMANDED for

further proceedings.

VACATED AND REMANDED.