                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                    UNITED STATES COURT OF APPEALS
                             FIFTH CIRCUIT                    November 6, 2003

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 02-41192
                           Summary Calendar


                         RUDOLFO B. MARTINEZ,

                                                  Plaintiff-Appellant,

                                versus

               UP BREAUX; UNIDENTIFIED PARTY, Jane Doe,

                                                   Defendant-Appellee.


          Appeal from the United States District Court
                for the Eastern District of Texas
                          (1:01-CV-767)


Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.

PER CURIAM:*

     Proceeding pro se and in forma pauperis, Rudolfo B. Martinez,

Texas prisoner # 340699, filed this civil rights action under 42

U.S.C. § 1983 against Breaux, a Texas Department of Criminal

Justice property officer, and Jane Doe.       The district court found

that Martinez failed to exhaust his administrative remedies and

dismissed the action without prejudice.        (Martinez’s motion for

appointment of counsel is DENIED.   See, e.g.,     Cupit v. Jones, 835

F.2d 82, 86 (5th Cir. 1987).)


     *
        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this opinion should not be published and is not precedent except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.
     Martinez    maintains    he    was     unable   to    comply    with   the

administrative   procedures     –   which    require      filing   the   step   1

grievance with the step 2 grievance – because his step 1 grievance

was never returned to him.          There is no evidence in the record

supporting this claim.       Martinez has not shown that the district

court erred when it found the failure to exhaust.              See Wendell v.

Asher, 162 F.3d 887, 890-91 (5th Cir. 1998).                Accordingly, the

judgment of the district court is AFFIRMED.

                                               AFFIRMED; MOTION DENIED




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