     Case: 10-40902     Document: 00511545109         Page: 1     Date Filed: 07/20/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                            July 20, 2011
                                     No. 10-40902
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

DAMON LEE WOOD,

                                                  Plaintiff-Appellant

v.

UNIDENTIFIED HIRSCH, Assistant Warden; KENNETH W. STACKHOUSE;
R. MCKEE, Law Librarian; DENNIS COKER, Correctional Officer; TIMOTHY
LESTER, Assistant Warden; TIMOTHY SIMMONS, Senior Warden,

                                                  Defendants-Appellees


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                              USDC No. 9:10-CV-53


Before JOLLY, SMITH, and GRAVES, circuit judges.
PER CURIAM:*
        Damon Lee Wood, Texas prisoner # 590030, appeals the dismissal of his
42 U.S.C. § 1983 lawsuit without prejudice for failure to exhaust administrative
remedies, pursuant to 42 U.S.C. § 1997e. This court takes “a strict approach” to
the exhaustion requirement, see Days v. Johnson, 322 F.3d 863, 866 (5th Cir.
2003) (overruled by implication on other grounds by Jones v. Bock, 549 U.S. 199,


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
   Case: 10-40902    Document: 00511545109     Page: 2   Date Filed: 07/20/2011

                                  No. 10-40902

216 (2007)), and reviews the district court’s dismissal de novo. Carbe v. Lappin,
492 F.3d 325, 328 (5th Cir. 2007).
      Wood contends that it was error for the court to raise exhaustion sua
sponte, urging that § 1997e does not require a plaintiff to prove exhaustion and
that exhaustion is an affirmative defense properly raised only by a defendant’s
motion to dismiss.    He concedes that he did not completely exhaust his
administrative remedies prior to filing his lawsuit but asserts that he did so
after filing, urging that he should have then been permitted to amend his
complaint to show exhaustion.
      Although Wood is correct that failure to exhaust is an affirmative defense
and that he was not required to prove the same, see Jones, 549 U.S. at 216,
because it was clear from the face of his complaint that he had not fully
exhausted his administrative remedies prior to filing the instant lawsuit, the
district court properly dismissed it. See Carbe, 492 F.3d at 328; 42 U.S.C.
§ 1997e. Wood’s argument that the district court erred in refusing to stay
proceedings to enable him to exhaust rather than dismiss his complaint is
without merit. See Porter v. Nussle, 534 U.S. 516, 523-32, esp. at 523-24 (2002);
§ 1997e. That he exhausted his administrative remedies subsequent to filing the
instant suit is insufficient. See Underwood v. Wilson, 151 F.3d 292, 296 (5th Cir.
1998) (overruled by implication on other grounds by Jones, 549 U.S. at 215).
      Moreover, Wood presents no valid defense to the exhaustion requirement.
His argument that emergency circumstances should have excused him from
exhaustion is merely a restatement of his claim that he is being retaliated
against and does not comprise one of the “rare instances” in which exhaustion
may be excused. See Woodford v. Ngo, 548 U.S. 81, 102 (2006).
      Wood has failed to demonstrate any error in the district court’s dismissal.
Accordingly, the district court’s judgment is AFFIRMED.




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