* 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that this opinion should not be published and is not precedent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. 02-40351

Summary Calendar

 

ALEX GUERRA, 

 

 Plaintiff-Appellant, 

versus 

J. RENEAU; E.H. OTT; E. HOWELL; B. CHEATUM; UNIDENTIFIED

ZAMORA, Officer; UNIDENTIFIED KEETON, Officer; UNIDENTIFIED

MANGRUM, Officer; UNIDENTIFIED HILYAR, Officer; UNIDENTIFIED

WEAVER, Officer; UNIDENTIFIED HERNANDEZ, Officer; MAILROOM

SUPERVISOR; GARY JOHNSON, Director, Texas Department of 

Criminal Justice, Institutional Division, 

 

 Defendants-Appellees. 

 

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

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 9:01-CV-329

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

July 25, 2002

Before REAVLEY, BARKSDALE and CLEMENT, Circuit Judges.

PER CURIAM:*

Alex Guerra, Texas prisoner #578328, appeals the district

court’s dismissal without prejudice of his 42 U.S.C. § 1983 civil

rights complaint for failure to exhaust administrative remedies. 

Guerra asserts that the district court erred in dismissing his
No. 02-40351

-2-

claims without first affording him an evidentiary hearing

pursuant to Spears v. McCotter, 766 F.2d 179, 180 (5th Cir.

1985), overruled on other grounds by Neitzke v. Williams, 490

U.S. 319, 324 (1989). Guerra argues that he provided a detailed

account of his grievance history relating to the claims presented

in his complaint.

Title 42 U.S.C. § 1997e(a) plainly requires that a prisoner

exhaust his administrative remedies before filing a 42 U.S.C. 

§ 1983 suit. Wendell v. Asher, 162 F.3d 887, 890 (5th Cir.

1998). “Dismissal under [42 U.S.C.] § 1997e 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 form the basis for dismissal.” Underwood v.

Wilson, 151 F.3d 292, 296 (5th Cir. 1998). 

“The Texas Department of Criminal Justice currently provides

a two-step procedure for presenting administrative grievances.” 

Wendell, 162 F.3d at 891. Guerra’s original complaint did not

allege that he exhausted his administrative remedies under the

Texas inmate grievance procedure and in fact suggested that he

failed to do so. The complaint and Guerra’s more definite

statement specifically identified at most two Step 1 grievances. 

Since neither of these pleadings asserted, even conclusionally,

that Guerra exhausted his administrative remedies, Guerra was not

entitled to a Spears hearing. See Spears, 766 F.2d at 180 
No. 02-40351

-3-

(holding that a Spears hearing is intended to dig beneath a

prisoner’s conclusional allegations to clarify his claims). 

In his objections to the magistrate judge’s report and

recommendation, Guerra asserted for the first time that he filed

his institutional grievances as required by 42 U.S.C. § 1997e and

that his more definite statement included statements regarding

his various institutional grievances, including one of the

previously mentioned Step 1 grievances. However, the remaining

grievances mentioned in Guerra’s objections were not in fact

identified in his more definite statement. Moreover, Guerra’s

objections either did not identify those grievances with any

specificity or identified them with dates showing that they were

not resolved prior to the filing of Guerra’s 42 U.S.C. § 1983

complaint. Guerra thus did not allege with sufficient

specificity that he exhausted his administrative remedies before

filing the instant civil rights action. See Wendell, 162 F.3d at

890; Underwood, 151 F.3d at 296. 

In light of the foregoing, the district court did not err in

dismissing without prejudice Guerra’s 42 U.S.C. § 1983 action for

failure to exhaust administrative remedies. The district court’s

judgment is AFFIRMED.