Vasquez v. Casarez ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS October 29, 2003
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 03-40586
Summary Calendar
ALFREDO VASQUEZ,
Plaintiff-Appellant,
versus
RENE CASAREZ,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. C-02-CV-565
Before HIGGINBOTHAM, DAVIS, and PRADO, Circuit Judges.
PER CURIAM:*
Alfredo Vasquez, Texas prisoner # 784866, filed a civil rights
action under 42 U.S.C. § 1983 against Rene Casarez, a prison
employee. Vasquez alleged that Casarez filed disciplinary charges
against him in retaliation for a complaint Vasquez alleged against
Casarez. The district court, adopting the recommendations of a
magistrate judge, dismissed Vasquez’s action on the grounds that he
failed to properly exhaust administrative remedies before filing
*
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this opinion should not be published and is not precedent except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.
suit.1 Specifically, the district court concluded that, although
Vasquez administratively raised due process arguments, he never
presented his claim of retaliation to the prison grievance process.
Vasquez, however, alleged in his objections to the magistrate
judge’s recommendation that he specifically exhausted his
retaliation claims by filing the requisite forms in accordance with
the grievance procedures established by the Texas Department of
Criminal Justice. Although he did not provide the court with
copies of the forms, he nonetheless alleged with “sufficient
specificity” that he exhausted his claims.2 Because the defendant
presented no evidence disputing the plaintiff’s assertion, there
does not appear to be a proper basis at this time for dismissal for
failure to exhaust. Accordingly, the judgment of the district
court is VACATED, and Vasquez’s claims are REMANDED to the district
court for further consideration.
1
42 U.S.C. § 1997e(a) (2003) (“No 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.”).
2
Underwood v. Wilson, 151 F.3d 292, 296 (5th Cir. 1998)
(“Dismissal under § 1997e is made on pleadings without proof. As
long as the plaintiff has alleged exhaustion with sufficient
specificity, lack of admissible evidence in the record does not
form the basis for dismissal.”).
2