Barker v. Taylor, et al

*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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
April 9, 2007
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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. Barker argues that the Texas
Department of Criminal Justice grievance procedures were
unavailable at the time of his injury. Alternatively, Barker
asserts that he should be exempt from the § 1997e exhaustion
requirement due to his physical and mental problems.

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2
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.

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