Sammer Yasin v. Travis Bragg ( 2012 )

Case: 11-50459 Document: 00511752050 Page: 1 Date Filed: 02/08/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 8, 2012
No. 11-50459
Summary Calendar Lyle W. Cayce
Clerk
SAMMER YASIN,
Plaintiff-Appellant
v.
WARDEN TRAVIS BRAGG; CASE MANAGER PARKS; COUNSELOR
ROSALES,
Defendants-Appellees
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:11-CV-174
Before JONES, Chief Judge, and HAYNES and GRAVES, Circuit Judges.
PER CURIAM:*
Sammer Yasin, federal prisoner # 60562-066, appeals the district court’s
sua sponte dismissal of his Bivens1 action for failure to state a claim based on
Yasin’s failure to exhaust his administrative remedies pursuant to 42 U.S.C.
§ 1997e(a). Yasin contends that his failure to exhaust was due to interference
by prison officials, that he should have been given notice and an opportunity to
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
1
Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971).
Case: 11-50459 Document: 00511752050 Page: 2 Date Filed: 02/08/2012
No. 11-50459
address the exhaustion issue prior to the dismissal of his complaint, and that
there is now no administrative remedy available because the time for grieving
has elapsed.
We review the district court’s dismissal de novo. Powe v. Ennis, 177 F.3d
393, 394 (5th Cir. 1999). Yasin’s complaint alleged that he requested a grievance
form from the prison counselor but was never given one. The district court’s
determination that Yasin had not exhausted his administrative remedies was
based on the inference that Yasin had made only a single request and a finding
that Yasin had not alleged that prison officials had refused to give Yasin the
appropriate form. Yasin was not required to plead any allegations with respect
to exhaustion. See Jones v. Bock, 549 U.S. 199, 216 (2007). As it was not
crystalline from the face of Yasin’s complaint that he had failed to exhaust his
administrative remedies, the district court’s dismissal on that ground was
premature. See id.; Carbe v. Lappin, 492 F.3d 325, 328 (5th Cir. 2007); Holloway
v. Gunnell, 685 F.2d 150, 154 (5th Cir. 1982).
We therefore VACATE and REMAND for service of the defendants and
subsequent proceedings.
2