                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS          April 22, 2003
                         FOR THE FIFTH CIRCUIT
                                                           Charles R. Fulbruge III
                                                                   Clerk

                             No. 02-20651
                           Summary Calendar



EMILIO SANCHEZ DURAN

                       Plaintiff - Appellant

     v.

SHERIFF OF HARRIS COUNTY JAIL; D DEBAKER,
Deputy, Individually and in his Official
Capacity; HERMAN HOFFSCHNEIDER, Deputy,
Individually and in his Official Capacity,

                       Defendants - Appellees

                         --------------------
             Appeal from the United States District Court
                  for the Southern District of Texas
                         USDC No. H-00-CV-249
                         --------------------

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

PER CURIAM:*

         Emilio Sanchez Duran, federal prisoner # 83360-079, appeals

the summary-judgment dismissal of his 42 U.S.C. § 1983 action

against Harris County, Texas, Sheriff’s Deputies Hoffschneider

and DeBaker in their individual capacities.

     As an initial matter, although the court noted that Duran

had not exhausted his administrative remedies, it declined to

     *
        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that this opinion should not be published and is not precedent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. 02-20651
                                -2-

dismiss on that basis because it was unclear whether

administrative remedies remain available and because the

defendants did not raise the issue of exhaustion.   Under 42

U.S.C. § 1997e (West Supp. 1998),

          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.

"[T]he exhaustion requirement applies to all inmate suits about

prison life, whether they involve general circumstances or

particular episodes, and whether they allege excessive force or

some other wrong."   Porter v. Nussle, 534 U.S. 517, 532 (2002).

Duran was therefore required to exhaust his administrative

remedies because exhaustion is mandatory.   See Booth v. Churner,

532 U.S. 731, 739 (2001); Clifford v. Gibbs, 298 F.3d 328, 332

(5th Cir. 2002).   On remand, the district court should reconsider

the exhaustion question under 42 U.S.C. § 1997e(a) and determine

what administrative remedies were available to Duran following

the incident and whether he exhausted those remedies before

filing suit, or whether the defendants waived compliance with the

exhaustion requirement by failing to raise it.

     Duran argues that the district court erred in granting

summary judgment to Deputies Hoffschneider and DeBaker in their

individual capacities.   The district court found that the extent

of Duran’s injury, or at least the lack of any physical signs of
                            No. 02-20651
                                 -3-

injury, did not “support a finding that Duran was savagely

assaulted in the manner he describes” and did not establish a

genuine issue of whether he suffered a cognizable injury.    An

evaluation of the evidence in the light most favorable to Duran

does not support this finding and the district court

impermissibly weighed the evidence in making its determination.

See Union Pac. Res. Group, Inc. v. Rhone-Poulenc, Inc., 247 F.3d

574, 584 (5th Cir. 2001); Little v. Liquid Air Corp., 37 F.3d

1069, 1075 (5th Cir. 1994) (en banc).

     There are genuine issues of material fact with regard to

whether Hoffschneider used force that was excessive, whether

DeBaker observed an unconstitutional assault and failed to

intervene to stop it, and whether Duran suffered a cognizable

injury.    See Williams v. Bramer, 180 F.3d 699, 703, clarified,

186 F.3d 633, 634 (5th Cir. 1999);    Hale v. Townley, 45 F.3d 914,

919 (5th Cir. 1995); Hudson v. McMillian, 962 F.2d 522, 523

(5th Cir. 1992).   Accordingly, the summary judgment in favor of

those defendants in their individual capacities is VACATED and

this case is REMANDED for further proceedings.

     Duran makes no argument that the district court erred in

granting summary judgment to Hoffschneider and DeBaker in their

official capacities or in dismissing the claims against the

Sheriff.   This part of the judgment is AFFIRMED.

     AFFIRMED IN PART; VACATED AND REMANDED IN PART.
