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

                                                FILED
                                                              September 15, 2009
                                No. 08-11093
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

SCOTT CHAMBERLAIN
                                           Plaintiff-Appellant

v.

RODNEY W CHANDLER, Warden; JORGE L PARTIDA, Dr, Medical
Department Clinical Director; ARY MARTINEZ, Medical Department
Administrator

                                           Defendants-Appellees


                 Appeal from the United States District Court
                      for the Northern District of Texas
                            USDC No. 1:08-CV-27


Before JONES, Chief Judge, and GARZA and PRADO, Circuit Judges.
PER CURIAM:*
      Scott Chamberlain, federal prisoner # 07579-094, appeals the district
court’s dismissal of his pro se complaint filed pursuant to Bivens v. Six Unknown
Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), and moves for
the appointment of counsel. In his complaint, he alleged that the defendants
were deliberately indifferent to his serious medical needs and alleged claims




      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                  No. 08-11093

under the Americans with Disabilities Act (ADA) and the Rehabilitation Act of
1973, 29 U.S.C. § 794(a).
      The district court dismissed sua sponte Chamberlain’s deliberate
indifference claims for failure to exhaust based on Chamberlain’s admission at
the Spears 1 hearing that he did not file administrative grievances at the regional
and central office level during his incarceration at the Federal Correctional
Institute, Big Spring.
      In Jones v. Bock, 549 U.S. 199, 216 (2007), the Supreme Court held that
an inmate’s failure to exhaust is an affirmative defense under the Prison
Litigation Reform Act and that “inmates are not required to specially plead or
demonstrate exhaustion in their complaints.” This court recognizes that under
Jones it is error for a district court to use screening procedures, such as a Spears
hearing, to resolve the question of exhaustion before a responsive pleading is
filed. See Carbe v. Lappin, 492 F.3d 325, 328 (5th Cir. 2007). Thus, under Jones
and Carbe, the district court erred in dismissing sua sponte Chamberlain’s
deliberate indifference claims for failure to exhaust, and we therefore vacate that
portion of the district court’s judgment.
      The district court dismissed as frivolous Chamberlain’s claims under the
ADA and the Rehabilitation Act. A complaint is frivolous “if it lacks an arguable
basis in fact or law.” Berry v. Brady, 192 F.3d 504, 507 (5th Cir. 1999) (internal
quotation marks omitted). This court’s review is for abuse of discretion. See
Martin v. Scott, 156 F.3d 578, 580 (5th Cir. 1998).
      The Bureau of Prisons is an agency of the Department of Justice, which
is within the executive branch of the government.           See United States v.
Bourgeois, 423 F.3d 501, 509 (5th Cir. 2005). Consequently, the district court
did not err in dismissing Chamberlain’s ADA claims against the defendants on
the basis that the ADA is not applicable to the federal government.             See


      1
          Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).

                                         2
                                 No. 08-11093

42 U.S.C. § 21111(5)(B); Henrickson v. Potter, 327 F.3d 444, 447 (5th Cir. 2003).
      With regard to Chamberlain’s entitlement under the Rehabilitation Act,
claims for monetary damages for alleged discrimination under any program or
activity against the Bureau of Prisons or its director are shielded by sovereign
immunity. See Lane v. Pena, 518 U.S. 187, 192-93 (1996).
      Finally, Chamberlain has not shown “exceptional circumstances”
warranting the appointment of counsel. See Cupit v. Jones, 835 F.2d 82, 86 (5th
Cir. 1987); Ulmer v. Chancellor, 691 F.2d 209, 212 (5th Cir. 1982). Although
Chamberlain has alleged physical ailments bearing upon his ability to proceed
pro se, Chamberlain has adequately presented his case thus far and the issues
are not complex. See id.
      Accordingly, the district court’s dismissal of Chamberlain’s deliberate
indifference claims is VACATED, and the case is REMANDED for further
proceedings in light of Jones. The district court’s dismissal of Chamberlain’s
remaining claims is AFFIRMED. Chamberlain’s motion for appointment of
counsel is DENIED.




                                       3
