                                                             United States Court of Appeals
                                                                      Fifth Circuit
                                                                   F I L E D
                   IN THE UNITED STATES COURT OF APPEALS         September 17, 2003
                           FOR THE FIFTH CIRCUIT
                                                               Charles R. Fulbruge III
                                                                       Clerk

                                No. 03-40465
                              Summary Calendar



                          ENCISO RODRIGO ACEVES,

                                                     Plaintiff-Appellant,

                                    versus

                        UP SWANSON, UNIT COUNSELOR,

                                                      Defendant-Appellee.

                           --------------------
              Appeal from the United States District Court
                    for the Eastern District of Texas
                           USDC No. 1:02-CV-817
                           --------------------

Before SMITH, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

      Enciso Rodrigo Aceves, federal prisoner #17690-198, appeals

from the dismissal of his 42 U.S.C. § 1983 action pursuant to

42   U.S.C.    §   1997e(a)   for   failure   to   exhaust   administrative

remedies.      Aceves alleges that he was never given Bureau of

Prisons’ (BOP) BP-9 forms to appeal from any BP-8 dispositions, nor

was he ever given BP-10 or BP-11 appeal forms, despite requesting

those forms from institution authorities.          According to Aceves, he

could not have obtained forms from any outside source because he

      *
        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this opinion should not be published and is not precedent except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.
was being held in segregation.

      Pursuant to 42 U.S.C. § 1997e(a), prisoners must exhaust

available administrative remedies before seeking 42 U.S.C. § 1983

relief in federal court.           Underwood v. Wilson, 151 F.3d 292, 294

(5th Cir. 1998). Aceves’s pleadings indicate that the BOP’s prison

grievance procedure was not available to Aceves for purposes of

42 U.S.C. § 1997e(a).          See Days v. Johnson, 322 F.3d 863, 867 (5th

Cir. 2003).

      Aceves alleges that none of the BP-10s that were rejected

because they were not written in English were relevant to his

federal claims.         Aceves alleges that he was told that BP-9 forms

would not be provided until the BP-8 forms were acted upon, that

the BP-8 forms were never processed, and that his requests for BP-

10 and BP-11 forms were refused.

      The regulations require that grievances be submitted on the

appropriate forms.        28 C.F.R. §§ 542.14(a), 542.15(b).                 Prisoners

“shall obtain the appropriate form from . . . institution staff

(ordinarily       the      correctional           counselor).”          28      C.F.R.

§ 542.14(c)(1). If the institutional authorities refuse to provide

a   prisoner   with      the   forms    needed       to   exhaust     administrative

remedies, then those remedies are not “available” to the prisoner.

      Dismissal    for     failure     to       exhaust   is   made   based    on   the

pleadings without proof.           Days, 322 F.3d at 866.              The district

court is not precluded from revisiting the exhaustion issue “based


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upon a response by the defendants.”   Id. at 868.

     VACATED AND REMANDED.




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