                                                              United States Court of Appeals
                                                                       Fifth Circuit
                                                                    F I L E D
                IN THE UNITED STATES COURT OF APPEALS               January 7, 2004
                        FOR THE FIFTH CIRCUIT
                                                                Charles R. Fulbruge III
                                                                        Clerk

                               No. 03-40549
                             Summary Calendar




RAYMOND DUANE SPRING,

                                         Plaintiff-Appellant,

versus

THE UNIVERSITY OF TEXAS MEDICAL BRANCH, Galveston;
JOHN D. STOBO; A. BABBILI; UNIDENTIFIED CHARIAN, Doctor;
UNIDENTIFIED JOYNER, Doctor,

                                         Defendants-Appellees.



                         --------------------
            Appeal from the United States District Court
                  for the Eastern District of Texas
                            No. 6:02-CV-592
                         --------------------



Before SMITH, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

     Raymond Spring appeals from the dismissal of his 42 U.S.C.

§ 1983 civil rights suit alleging deliberate indifference in

providing medical care.      Following a hearing performed pursuant to

Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985), a magistrate


     *
        Pursuant to 5TH CIR. R. 47.5, the court has determined that this opin-
ion should not be published and is not precedent except under the limited cir-
cumstances set forth in 5TH CIR. R. 47.5.4.
                             No. 03-40549
                                  -2-

judge recommended dismissing the claims as frivolous and for fail-

ure to state a claim.     In his objections, Spring argued that his

claims are meritorious and that he had been denied the right to

amend his complaint to include additional defendants.

     The district court denied his objections, ruling that the at-

tempted addition of new defendants was presented for the first time

in the objections to the report of the magistrate judge and that

Spring had failed properly to allege exhaustion.        The record re-

veals, however, that twice during the Spears hearing, Spring had

mentioned his desire to amend.     Further, the requested amendment

could not have been denied for failure properly to allege exhaus-

tion until Spring had been afforded an opportunity to make the

requisite showing.   See Miller v. Stanmore, 636 F.2d 986, 991 (5th

Cir. Unit A Feb. 1981).    Because the putative amendment would have

been the amendment filed by Spring in this case, it should have

been permitted as a matter of course.       See FED. R. CIV. P. 15(a).

     Although we express no opinion as to the merit of the existing

allegations, it is premature to affirm the dismissal before Spring

is given the opportunity to amend.      Accordingly, we VACATE and

REMAND for proceedings consistent with this opinion.
