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

                                                                FILED
                                                                June 25, 2008
                               No. 06-10451
                             Summary Calendar              Charles R. Fulbruge III
                                                                   Clerk

LINDY RAY MATTHEWS

                                          Plaintiff-Appellant

v.

WARDEN L E FLEMING; PAUL CELESTIN; JOHN MILLS; L HUBER; JOSE
GOMEZ; J JAACKS; H SOLISE; JOHN DOE; JOHN DOE, 2; DR J CAPPS;
OTHERS, names unknown

                                          Defendants-Appellees


                 Appeal from the United States District Court
                      for the Northern District of Texas
                           USDC No. 3:05-CV-1408


Before STEWART, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
      Lindy Ray Matthews, former federal prisoner # 97243-079, appeals the
district court’s dismissal of his pro se suit filed pursuant to Bivens v. Six
Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). At
the time Matthews filed suit he had already discharged his federal sentence and
was a Texas state inmate. Matthews alleges that he was denied proper medical


      *
      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should not be published and is not precedent except under the limited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. 06-10451

treatment during his incarceration at the Federal Medical Center in Fort Worth
and at Federal Correctional Institution in Seagoville, Texas. Matthews alleges
that the defendants were deliberately indifferent to his medical needs and that
they retaliated against him after he complained about his medical treatment.
He asserts that the defendants ignored his complaints that he had torn rotator
cuffs in both shoulders, refused to timely order an MRI of his shoulders, and
refused to approve an orthopedic surgeon’s recommendation for surgery after an
MRI confirmed rotator cuff tears in both shoulders. The defendants were not
served.
      The district court dismissed Matthews’s claims arising before July 2003
as barred by the applicable Texas two-year statute of limitations. The district
court also dismissed sua sponte Matthews’s claims arising after July 2003 for
failure to exhaust, based on Matthews’s admission in a questionnaire
propounded by the magistrate judge that he had not exhausted his remedies as
to those claims.
      Matthews also argues that the district court erred in dismissing his post-
July 2003 claims for failure to exhaust administrative remedies. In addition,
Matthews asserts for the first time that the district court erred in declining to
exercise supplemental jurisdiction over his state law claims of negligence and
medical malpractice.
      In Jones v. Bock, 127 S. Ct. 910 (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 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 Matthews’s post-July 2003 claims for failure to
exhaust, and we therefore vacate that portion of the district court’s judgment.

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                                      No. 06-10451

In light of our decision to vacate the district court’s dismissal of Matthews’s post-
July claims, we need not reach the issue whether the district court erred in
declining to exercise supplemental jurisdiction over Matthews’s state law claims.
       Matthews also argues that he is entitled to equitable tolling for his pre-
July 2003 claims because his transfers to various facilities within the federal
prison system prevented him from asserting his rights.           Because Matthews
raises this argument for this first time on appeal this court will not consider it.
See Leverette v. Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir. 1999).
       Matthews also argues the defendants’ actions constituted a continuing tort
that equitably tolled the limitations period for his pre-July claims. Although
this court has recognized that the doctrine may be applicable where an
individual suffers an ongoing and persistent injury, rather than a series of
discrete injuries, see Pete v. Metcalfe, 8 F.3d 214, 218 (5th Cir. 1993); Petrus v.
United States Justice Dept., 18 F.3d 936, 936 (5th Cir. 1994), Matthews is not
entitled to relief based on the record presented.
       Matthews also asserts that the district court erred in denying his motion
to   file   additional   objections    to   the   magistrate   judge’s   report   and
recommendation. However, Matthews fails to provide any analysis in support
of his contention that the district court abused its discretion in denying his
motion to file additional objections to the magistrate judge’s report and has
therefore failed to adequately brief this issue. See Brinkmann v. Dallas County
Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).
       Accordingly, the district court’s dismissal of Matthews’s post-July 2003
claims is VACATED, and the case is REMANDED for further proceedings in
light of Jones. The district court’s dismissal of Matthews’s pre-July 2003 claims
is AFFIRMED.




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