                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   July 29, 2004

                                                         Charles R. Fulbruge III
                                                                 Clerk
                             No. 04-40201
                           Summary Calendar


THOMAS H. CLAY,

                                     Plaintiff-Appellant,

versus

UNIVERSITY OF TEXAS MEDICAL BRANCH, at John Sealy;
UNIVERSITY OF TEXAS MEDICAL BRANCH CORRECTIONAL
HEALTHCARE MANAGEMENT; JOHN SEALY EMPLOYEES;
JANE DOE, #; ET AL.,

                                     Defendants-Appellees.

                       --------------------
          Appeal from the United States District Court
                for the Eastern District of Texas
                       USDC No. 9:03-CV-268
                       --------------------

Before DAVIS, SMITH, and DENNIS, Circuit Judges.

PER CURIAM:*

     Thomas H. Clay, Texas prisoner # 1124123, appeals the

district court’s dismissal without prejudice of his civil rights

complaint pursuant to 42 U.S.C. § 1997e for failure to exhaust

administrative remedies.    Clay argues that the district court

erred in dismissing his complaint, because he specifically

pleaded exhaustion.   Clay additionally argues, for the first time

on appeal, that failure to exhaust is an affirmative defense that


     *
       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this opinion should not be published and is not precedent except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. 04-40201
                                  -2-

must be raised by the defendants, that the district court

erroneously held him to a heightened pleading standard, and that

the court had no authority to dismiss sua sponte his complaint.

     “[A] dismissal under § 1997e is made upon the pleadings

without proof.”    Days v. Johnson, 322 F.3d 863, 868 (5th Cir.

2003).    Thus, “[a]s long as the plaintiff has alleged exhaustion

with sufficient specificity, lack of admissible evidence in the

record does not form the basis for dismissal.”    Id. at 866

(quoting Underwood v. Wilson, 151 F.3d 292, 296 (5th Cir. 1998)).

The district court determined, however, that Clay was not

entitled to rely on his pleadings in asserting exhaustion

“because the time frame [made] clear that exhaustion was

impossible.”    As Clay contends, it was not impossible for him to

exhaust his administrative remedies before filing suit.     See

Wendell v. Asher, 162 F.3d 887, 891 (5th Cir. 1998) (illustrating

that the filing of, and response to, prisoner grievance can take

significantly less time than that allowed).    Therefore, Clay was

entitled to rely on his pleadings in asserting exhaustion.        Days,

322 F.3d at 866, 868.

     Based on the foregoing, the district court’s judgment is

VACATED, and the case is REMANDED for further proceedings.     The

district court, however, is not precluded from revisiting the

exhaustion issue “based upon a response by the defendants.”       Id.

at 868.

     VACATED AND REMANDED.
