Aceves v. Swanson ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS September 17, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-40465
Summary Calendar
ENCISO RODRIGO ACEVES,
Plaintiff-Appellant,
versus
UP SWANSON, UNIT COUNSELOR,
Defendant-Appellee.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:02-CV-817
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Before SMITH, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Enciso Rodrigo Aceves, federal prisoner #17690-198, appeals
from the dismissal of his 42 U.S.C. § 1983 action pursuant to
42 U.S.C. § 1997e(a) for failure to exhaust administrative
remedies. Aceves alleges that he was never given Bureau of
Prisons’ (BOP) BP-9 forms to appeal from any BP-8 dispositions, nor
was he ever given BP-10 or BP-11 appeal forms, despite requesting
those forms from institution authorities. According to Aceves, he
could not have obtained forms from any outside source because he
*
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this opinion should not be published and is not precedent except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.
was being held in segregation.
Pursuant to 42 U.S.C. § 1997e(a), prisoners must exhaust
available administrative remedies before seeking 42 U.S.C. § 1983
relief in federal court. Underwood v. Wilson, 151 F.3d 292, 294
(5th Cir. 1998). Aceves’s pleadings indicate that the BOP’s prison
grievance procedure was not available to Aceves for purposes of
42 U.S.C. § 1997e(a). See Days v. Johnson, 322 F.3d 863, 867 (5th
Cir. 2003).
Aceves alleges that none of the BP-10s that were rejected
because they were not written in English were relevant to his
federal claims. Aceves alleges that he was told that BP-9 forms
would not be provided until the BP-8 forms were acted upon, that
the BP-8 forms were never processed, and that his requests for BP-
10 and BP-11 forms were refused.
The regulations require that grievances be submitted on the
appropriate forms. 28 C.F.R. §§ 542.14(a), 542.15(b). Prisoners
“shall obtain the appropriate form from . . . institution staff
(ordinarily the correctional counselor).” 28 C.F.R.
§ 542.14(c)(1). If the institutional authorities refuse to provide
a prisoner with the forms needed to exhaust administrative
remedies, then those remedies are not “available” to the prisoner.
Dismissal for failure to exhaust is made based on the
pleadings without proof. Days, 322 F.3d at 866. The district
court is not precluded from revisiting the exhaustion issue “based
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upon a response by the defendants.” Id. at 868.
VACATED AND REMANDED.
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