Barker v. Taylor, et al, No. 06-41034 (5th Cir. 2007)
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United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT April 9, 2007 Charles R. Fulbruge III Clerk No. 06-41034 Summary Calendar WAYNE ERNEST BARKER, Plaintiff-Appellant, versus DR. JOSEPH TAYLOR; ANN SWEETEN, Defendants-Appellees. Appeal from the United States District Court for the Southern District of Texas USDC No. 3:05-CV-87 Before JONES, Chief Judge, and HIGGINBOTHAM and SMITH, Circuit Judges. PER CURIAM:* Wayne Ernest Barker, Texas prisoner # 900987, appeals the district court s dismissal of his pro se and in forma pauperis civil rights complaint pursuant to 42 U.S.C. § 1997e for failure to exhaust administrative remedies. Department of Criminal Justice Barker argues that the Texas grievance unavailable at the time of his injury. procedures were Alternatively, Barker asserts that he should be exempt from the § 1997e exhaustion requirement due to his physical and mental problems. * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. The Supreme Court recently held that failure to exhaust is an affirmative defense under the PLRA, and that inmates are not required to specially plead or demonstrate exhaustion in their complaints. Jones v. Bock, 127 S. Ct. 910, 921 (2007). Under Jones, the district court erred by dismissing the case because Barker did not demonstrate in his pleadings that he had exhausted his claims. Accordingly, the district court s judgment is vacated, and the case is remanded for further proceedings. VACATED AND REMANDED. 2
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