     Case: 12-40400     Document: 00512032874         Page: 1     Date Filed: 10/25/2012




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

                                                                            FILED
                                                                         October 25, 2012
                                     No.12-40400
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

TROY LEE PERKINS,

                                                  Plaintiff-Appellant

v.

SHANDA Y. COLLINS, Polunsky Unit,

                                                  Defendant-Appellee


                   Appeals from the United States District Court
                         for the Eastern District of Texas
                              USDC No. 9:11-CV-199


Before JOLLY, DAVIS, and OWEN, Circuit Judges.
PER CURIAM:*
        Troy Lee Perkins, Texas prisoner # 1480826, filed a form 42 U.S.C. § 1983
complaint against Officer Shanda Y. Collins raising various claims.                       On
recommendation of the magistrate judge, and over objections by Perkins, the
district court dismissed Perkins’s complaint for failure to exhaust administrative
remedies. The court also denied Perkins leave to proceed in forma pauperis
(IFP) on appeal, certifying pursuant to 28 U.S.C. § 1915(a)(3) and Rule 24 of the
Federal Rules of Appellate Procedure that the appeal was not taken in good

       *
         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 R. 47.5, the Court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                  No. 12-40400

faith. Perkins filed a timely notice of appeal and now seeks leave from this court
to proceed IFP.
      By moving to proceed IFP in this court, Perkins has challenged the district
court’s certification decision. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir.
1997). Our inquiry is whether “the appeal involves legal points arguable on
their merits (and therefore not frivolous).” Howard v. King, 707 F.2d 215, 220
(5th Cir. 1983) (internal quotation omitted).
      Although exhaustion is mandatory under the Prison Litigation Reform
Act, the Supreme Court held in Jones v. Bock, 549 U.S. 199, 211-13 (2007), that
exhaustion is an affirmative defense that must be pleaded by the defendant.
Courts may not require that prisoners affirmatively plead or demonstrate
exhaustion. Id. at 213-14, 216. A district court may still “dismiss a case prior
to service on defendants for failure to state a claim, predicated on failure to
exhaust, if the complaint itself makes clear that the prisoner failed to exhaust.”
Carbe v. Lappin, 492 F.3d 325, 328 (5th Cir. 2007). However, courts may not
sidestep Jones by local rule requiring prisoners to plead exhaustion.              Id.
      Here, the court relied on Perkins’s response to Question III on a form
complaint, which asked whether he had exhausted his administrative remedies.
In the space provided to indicate “No,” Perkins responded “N/A.” Perkins’s
complaint is otherwise silent as to exhaustion. Reliance on information elicited
by such a form complaint effectively put the onus on Perkins to affirmatively
plead and demonstrate exhaustion, contrary to Jones and Carbe. See Torns v.
Miss. Dep’t of Corrs., 301 F. App’x 386, 389 (5th Cir. 2008).
      In addition, although he was not required to plead or demonstrate
exhaustion, Perkins did file copies of grievance forms attached to a second set of
objections to the magistrate judge’s report and recommendation. Although the
objections were received after the district court ruled, it appears that they were
placed in the prison mail on or before an extension of time granted by the



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                                No. 12-40400

magistrate judge expired. See Cooper v. Brookshire, 70 F.3d 377, 379 (5th Cir.
1995).
     In light of the foregoing, we conclude that Perkins has shown that his
appeal will present a nonfrivolous issue. Further, he has demonstrated the
requisite financial eligibility. See § 1915(a). Therefore, we grant Perkins’s
motion to proceed IFP. We also conclude that further briefing is unnecessary.
See Whitehead v. Johnson, 157 F.3d 384, 388 (5th Cir. 1998).
     IT IS ORDERED that the motion to proceed IFP on appeal is GRANTED;
that the judgment of the district court is VACATED; and that this matter is
REMANDED for further proceedings consistent with this opinion.




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