                                                     United States Court of Appeals
                                                              Fifth Circuit
                                                           F I L E D
                  UNITED STATES COURT OF APPEALS
                                                           October 26, 2005
                           FIFTH CIRCUIT
                                                       Charles R. Fulbruge III
                                                               Clerk
                           No. 04-41331
                         Summary Calendar


                        WILLIS FLOYD WILEY,

                                              Plaintiff-Appellant,

                              versus

  JACK MANGRUM; DOROTHY BURNS; WARNER LUMPKINS; T.M. ATKINS; D.
HARDY; NURSE CHERIAN; VONDA RAFTER; FRANCISCO RODRIGUEZ; JAMES
WHEELER; TIMOTHY NEW; JOHN AGBONKONKON; CARLA PARKS; OFFICER
SIVERAND; DOCTOR OWUSU,

                                              Defendants-Appellees.


           Appeal from the United States District Court
                 for the Southern District of Texas
                           (3:03-CV-872)


Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Willis Floyd Wiley, Texas prisoner # 753383, appeals, pro se,

the dismissal with prejudice of his 42 U.S.C. § 1983 complaint for

failure to exhaust administrative remedies, pursuant to 42 U.S.C.

§ 1997e.    The district court found Wiley had not established

exhaustion because the Steps 1 and 2 grievances he provided in

support of his grievance had been returned to him for failure 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this opinion should not be published and is not precedent except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.
comply with prison procedures.    Wiley contends for the first time

on appeal that he exhausted because he resubmitted his Step 1

grievance.

     Generally, evidentiary contentions of this type not presented

in district court will not be considered for the first time on

appeal.   Stokes v. Emerson Elec. Co., 217 F.3d 353, 358 n.19 (5th

Cir. 2000).   In any event, Wiley has not established the district

court erred in dismissing his complaint for failure to exhaust; he

has not shown he exhausted his administrative remedies by filing a

Step 1 and Step 2 grievance.   See Johnson v. Johnson, 385 F.3d 503,

515 (5th Cir. 2004); Powe v. Ennis, 177 F.3d 393, 394 (5th Cir.

1999).

     Accordingly, the judgment is AFFIRMED, but it is MODIFIED to

reflect the dismissal of these claims WITH PREJUDICE for purposes

of proceeding in an in forma pauperis proceeding pursuant to 28

U.S.C. § 1915(d).   Therefore, if Wiley exhausts his administrative

remedies, he can present his § 1983 claims again, but he may not

proceed in forma pauperis to do so.    See Underwood v. Wilson, 151

F.3d 292, 296 (5th Cir. 1998), cert. denied, 526 U.S. 1133 (1999).

                                            AFFIRMED AS MODIFIED




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