     Case: 12-31097      Document: 00512460371         Page: 1    Date Filed: 12/04/2013




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

                                                                                 FILED
                                    No. 12-31097                            December 4, 2013
                                  Summary Calendar                            Lyle W. Cayce
                                                                                   Clerk

DERRICK SCOTT,

                                                 Plaintiff-Appellant

v.

TERRY PORET; UNKNOWN RICHARDSON; UNKNOWN IRVIN; TRISH
FOSTER,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                      For the Middle District of Louisiana
                             USDC No. 3:12-CV-346


Before DAVIS, BENAVIDES, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Derrick Scott, Louisiana prisoner # 126372, filed a 42 U.S.C. § 1983
complaint alleging that several staff members at the Louisiana State
Penitentiary had retaliated against him for filing grievances through the
prison’s Administrative Remedy Procedure program (ARP). Scott appeals the
district court’s sua sponte dismissal of his complaint based on a finding 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 12-31097     Document: 00512460371      Page: 2    Date Filed: 12/04/2013


                                  No. 12-31097

he failed to exhaust his administrative remedies prior to filing his § 1983
complaint.
      Pursuant to the Prison Litigation Reform Act (PLRA), “[n]o action shall
be brought with respect to prison conditions under section 1983 of this title, or
any other Federal law, by a prisoner confined in any jail, prison, or other
correctional facility until such administrative remedies as are available are
exhausted.” 42 U.S.C. § 1997e(a). The PLRA’s exhaustion requirement is
mandatory, and unexhausted claims may not be brought in court. Jones v.
Bock, 549 U.S. 199, 211 (2007). Generally, a prisoner’s failure to exhaust
administrative remedies is an affirmative defense under the PLRA and
prisoners “are not required to specially plead or demonstrate exhaustion in
their complaints.” Id. at 216. However, we have interpreted Jones to allow a
district court to sua sponte dismiss a case 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).
      We note that Scott’s § 1983 complaint admitted that he had not filed a
Step 2 request.      However, Scott also made various arguments that his
administrative remedies should be considered unavailable and deemed
exhausted. For example, he argued that prison officials deliberately ignored
his Step 1 request or placed it in a “backlog” status. See Holloway v. Gunnell,
685 F.2d 150, 154-55 (5th Cir. 1982). In addition, the record does not contain
a copy of the ARP procedures that the prison required inmates to follow, which
is relevant to Scott’s claim that officials failed to inform inmates that they
could proceed with a Step 2 request if there was no timely response to their
Step 1 request. See Torns v. Miss. Dep’t of Corr., 301 F. App’x 386, 389 & n.3
(5th Cir. 2008).




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                                No. 12-31097

      In sum, we conclude that Scott’s failure to exhaust administrative
remedies was not “clear” on the face of the complaint. Therefore, the district
court’s sua sponte dismissal is vacated and the matter is remanded to the
district court for service on the defendants and subsequent proceedings.
      VACATED AND REMANDED.




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