                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 October 20, 2004

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 04-40246
                         Summary Calendar



EDWARD LEE HOLLOWAY,

                                    Plaintiff-Appellant,

versus

ALBERT OGUEJIOFOR, DR.; P. A. LYNCH; CAROL SELF, R.N.; MELODY
MORRIS, AVIS LOPEZ; UNIVERSITY OF TEXAS SYSTEM, Health Services
Division; CHARLES MULLINS, Dr., Vice Chancellor,

                                    Defendants-Appellees.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                      USDC No. G-02-CV-323
                      --------------------

Before DAVIS, SMITH, and DENNIS, Circuit Judges.

PER CURIAM:*

     Edward Lee Holloway, Texas prisoner # 744655, appeals the

district court’s dismissal as frivolous of his pro se, in forma

pauperis, 42 U.S.C. § 1983 complaint.   Holloway alleged that the

defendants were deliberately indifferent to his serious medical

needs when he had a heart attack.

     Holloway’s claim has an arguable basis in law.     See Estelle

v. Gamble, 429 U.S. 97, 104-06 (1976); Stewart v. Murphy, 174


     *
       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this opinion should not be published and is not precedent except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. 04-40246
                                  -2-

F.3d 530, 533-534 (5th Cir. 1999).    Because Holloway’s claim is

not “based on an indisputably meritless legal theory,” it is not

frivolous, although it may ultimately be determined to be without

merit.   Neitzke v. Williams, 490 U.S. 319, 327 (1989); Berry v.

Brady, 192 F.3d 504, 507 (5th Cir. 1999).   Accordingly, the

district court’s dismissal of this action as frivolous is VACATED

and the case is REMANDED for further proceedings.

     Additionally, our review of the record shows Holloway

indicated in his complaint that he had not exhausted the prison’s

grievance procedure.   Exhaustion of administrative remedies is a

threshold requirement for the filing of a prisoner § 1983 action.

See 42 U.S.C. § 1997e(a); Porter v. Nussle, 534 U.S. 516, 524-32

(2002); Wendell v. Asher, 162 F.3d 887, 890-91 (5th Cir. 1998).

Therefore, on remand, the district court should make a

determination whether Holloway has exhausted administrative

remedies.

     VACATED AND REMANDED.
