Goree v. Travis Cty St Jail, et al, No. 07-50039 (5th Cir. 2007)

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IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED No. 07-50039 Summary Calendar November 21, 2007 Charles R. Fulbruge III Clerk JOHN E GOREE Plaintiff-Appellant v. TRAVIS COUNTY STATE JAIL; DEPARTMENT OF CORRECTIONS; NATHANIEL QUARTERMAN Defendants-Appellees Appeal from the United States District Court for the Western District of Texas USDC No. 1:06-CV-618 Before REAVLEY, SMITH, and BARKSDALE, Circuit Judges. PER CURIAM:* John E. Goree, Texas prisoner # 1334846, appeals the dismissal without prejudice of his 42 U.S.C. § 1983 action for failure to exhaust administrative remedies. Goree argues that the Texas Department of Criminal Justice s (TDCJ) grievance procedure was not the proper means to address his complaints and that the I-60 complaint procedure was an appropriate alternative which satisfied the exhaustion requirement. He also argues that the unsanitary conditions at * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-50039 the Travis County jail and the absence of durable utensils and drinking cups violated his Eighth Amendment rights. After the district court s judgment, the Supreme Court 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). As this action was dismissed prior to service on the defendants, and it is not clear from the complaint that Goree exhausted his administrative remedies, the district court erred by sua sponte dismissing Goree s suit. See Carbe v. Lappin, 492 F.3d 325, 328 (5th Cir. 2007). The district court s judgment is VACATED and the case is REMANDED for further proceedings consistent with Jones. 2

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