                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS        December 18, 2003
                       FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                                                                 Clerk

                           No. 03-20629
                         Summary Calendar



KATHLEEN THOMAS, individually and as next friend of Shelby
Severance,

                                    Plaintiff-Appellant,

versus

CONROE INDEPENDENT SCHOOL DISTRICT; DAVID LUSK, Doctor; JEAN
STEWART; MARY KAY ALBRIGHT; DR. SOFFER; ANITA NATALE; KAYE
PICKETT; TERRY RAND; SHERRY DEATON; CINDY SHANE; CAREN KIRTEN;
CARRIE GALATAS; DORIS PHELPS; JACKIE HAASE; BARBARA WATSON; ANN
SYNDER; GEORGE C. KAUFMAN; ALAN A. MOORE; HAROLD CRYAR; GERALD D.
IRONS; ROBERT EISSLER; DEFENDANTS DOE,

                                    Defendants-Appellees.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                      USDC No. H-02-CV-4248
                       --------------------

Before HIGGINBOTHAM, DAVIS and PRADO, Circuit Judges.

PER CURIAM:*

     Kathleen Thomas, individually and as next friend of Shelby

Severance, appeals the district court’s dismissal of her

complaint pursuant to FED. R. CIV. P. 12(b)(1) for failure to

exhaust administrative remedies.   Because the relief Thomas seeks


     *
        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that this opinion should not be published and is not precedent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. 03-20629
                                -2-

is available under the Individuals with Disabilities Education

Act (IDEA), 20 U.S.C. §§ 1400 et seq., she is subject to its

exhaustion requirement.   20 U.S.C. § 1415(l); Gardner v. School

Bd. Caddo Parish, 958 F.2d 108, 112 (5th Cir. 1992).

     Thomas’ argument that Conroe Independent School District’s

(CISD’s) alleged violation of the “stay-put” provision of IDEA,

20 U.S.C. § 1415(j), is a basis for bypassing the exhaustion

requirement is without merit, as there was no administrative or

judicial proceeding pending when the alleged stay-put violation

occurred.   The stay-put provision is therefore inapplicable.

Thomas’ argument that the district court should have issued a

preliminary injunction against the defendants’ changing Shelby’s

educational placement and/or services in violation of IDEA

safeguards does not address the exhaustion requirement and is

therefore irrelevant.

     Thomas has failed to demonstrate error in the district

court’s dismissal of her case without prejudice for failure to

exhaust administrative remedies.   That dismissal is hereby

AFFIRMED.

     CISD’s motion to dismiss this appeal and for sanctions

pursuant to FED. R. APP. P. 38 is DENIED.

     AFFIRMED.   MOTIONS DENIED.
