                                                                United States Court of Appeals
                                                                         Fifth Circuit
                                                                      F I L E D
                  IN THE UNITED STATES COURT OF APPEALS              September 5, 2003

                                                                  Charles R. Fulbruge III
                          FOR THE FIFTH CIRCUIT                           Clerk



                                No. 02-60891
                              Summary Calendar



JACKIE R. HICKS,

            Plaintiff-Appellant,

                                    versus

STATE OF MISSISSIPPI; MISSISSIPPI DEPARTMENT OF CORRECTIONS; ROBERT
L. JOHNSON, COMMISSIONER, MISSISSIPPI DEPARTMENT OF CORRECTIONS;
EDDIE CATES, Acting Warden; ALICE ARNOLD, Sergeant,

            Defendants-Appellees.



            Appeal from the United States District Court
              for the Southern District of Mississippi
                       USDC No. 3:02-CV-201-LN


Before HIGGINBOTHAM, EMILIO M. GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

     Jackie    Hicks,   Mississippi    prisoner    #   65534,    appeals      the

district court’s dismissal with prejudice of her 42 U.S.C. § 1983

civil    rights   complaint   for   failure   to   exhaust   administrative




     *
      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this opinion should not be published and is not precedent except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.
remedies, as frivolous, and for failure to state a claim for

relief.1    Hicks has also filed a motion for appointment of counsel.

      Dismissals for failure to exhaust administrative remedies

under 42 U.S.C. § 1997e(a) are reviewed de novo.2                     Hicks argues

that she qualifies for an exception to the exhaustion requirement

because the grievance procedure is inadequate and complicated. The

administrative remedy exhaustion requirement of 42 U.S.C. § 1997e

is mandatory regardless of the forms of relief sought or offered

through administrative avenues.3                  This court has taken a strict

approach to the exhaustion requirement.4                    Nevertheless, we have

recognized that an exception to the exhaustion requirement exists

for   certain      defenses       such   as   waiver,   estoppel,    or    equitable

tolling.5

      The       record   reflects    that     Hicks   did   not   comply   with   the

Administrative           Remedy     Procedure       (ARP)     grievance     process.

Specifically, the ARP directed her to submit a complaint satisfying

numerous prerequisites.            Hicks never responded to this directive.

Her   argument       that    the     grievance      process    was   difficult    is




      1
          28 U.S.C. § 1915(e)(2)(B)(i),(ii); 42 U.S.C. § 1997e(a).
      2
          Powe v. Ennis, 177 F.3d 393, 394 (5th Cir. 1999).
      3
          Days v. Johnson, 322 F.3d 863, 866 (5th Cir. 2003).
      4
          Id.
      5
          Wendell v. Asher, 162 F.3d 887, 890-91 (5th Cir. 1998).

                                              2
insufficient       to    warrant    an       exception    to     the     exhaustion

requirement.6

      Although     the    district       court’s     dismissal         was   proper,

it   is unclear     whether   the    dismissal      was   with    prejudice    with

respect to the exhaustion requirement.               The court addressed the

exhaustion requirement at length in its memorandum opinion of

dismissal but it made no mention of this ground in the final

judgment. However, the court’s final judgment did provide that the

§ 1915(e)(2)(b)(i) and (ii) dismissal was pursuant to the reasons

contained     in   the   memorandum      opinion,     which      encompassed    the

exhaustion analysis.       Because it is unclear whether the dismissal

was with prejudice with respect to exhaustion, the judgment of the

district court will be affirmed as modified to reflect that the

dismissal for failure to exhaust is without prejudice.7                      Because

this court is affirming the judgment as modified on this basis, the

district court’s dismissal of Hicks’s complaint for failure to

state a claim of relief need not be addressed.8

      Hicks argues that the district court erred in failing to

permit her to amend her complaint.             Hicks had filed a “motion for

discovery” which the court denied and is properly construed as a

Federal Rule of Civil Procedure 60(b)(6) motion.                 Hicks failed to

      6
          See Days, 322 F.3d at 866.
      7
          See generally Wright, 260 F.3d at 359.
      8
          See Sojourner T. v. Edwards, 974 F.2d 27, 30 (5th Cir.
1992).

                                         3
file a notice of appeal from the court’s order denying her Rule

60(b) motion. Accordingly, this court lacks jurisdiction to review

the motion.9

     For the first time on appeal, Hicks alleges that Arnold

discussed the incident with other inmates in an attempt to incite

retaliation against her and that the prison manual violated her

rights under the Fourteenth Amendment.        Hicks is precluded from

raising these issues for the first time on appeal.10

     The   judgment   of   the   district   court   dismissing   Hicks’s

complaint is AFFIRMED as MODIFIED to reflect a dismissal without

prejudice for failure to exhaust administrative remedies.        Hicks’s

motion for appointment of counsel is DENIED.




     9
       See FED. R. APP. P. 4(a)(1)(A); Ledford v. Thomas, 275 F.3d
471, 475 (5th Cir. 2001), cert. denied, 536 U.S. 927 (2002).
     10
       See Leverette v. Louisville Ladder Co., 183 F.3d 339, 342
(5th Cir. 1999).

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