Martinez v. Breaux

United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS FIFTH CIRCUIT November 6, 2003

Charles R. Fulbruge III Clerk No. 02-41192 Summary Calendar

RUDOLFO B. MARTINEZ,

Plaintiff-Appellant,

versus

UP BREAUX; UNIDENTIFIED PARTY, Jane Doe,

Defendant-Appellee.

Appeal from the United States District Court for the Eastern District of Texas (1:01-CV-767)

Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.

PER CURIAM:*

Proceeding pro se and in forma pauperis, Rudolfo B. Martinez,

Texas prisoner # 340699, filed this civil rights action under 42

U.S.C. § 1983 against Breaux, a Texas Department of Criminal

Justice property officer, and Jane Doe. The district court found

that Martinez failed to exhaust his administrative remedies and

dismissed the action without prejudice. (Martinez’s motion for

appointment of counsel is DENIED. See, e.g., Cupit v. Jones, 835

F.2d 82, 86 (5th Cir. 1987).)

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.  Martinez maintains he was unable to comply with the

administrative procedures – which require filing the step 1

grievance with the step 2 grievance – because his step 1 grievance

was never returned to him. There is no evidence in the record

supporting this claim. Martinez has not shown that the district

court erred when it found the failure to exhaust. See Wendell v.

Asher, 162 F.3d 887, 890-91 (5th Cir. 1998). Accordingly, the

judgment of the district court is AFFIRMED.

AFFIRMED; MOTION DENIED

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