IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

_____________________

No. 99-40167 Summary Calendar _____________________

ALPHONSO SMITH,

Plaintiff-Appellant,

versus

UNIDENTIFIED TURKSKIN, Nurse, Coffield Unit; DAVID CARTER, Sergeant, Coffield Unit; LUCIO CASTRO, Gang Intelligence, Coffield Unit; UNIDENTIFIED TOMKINS, Building Security, Coffield Unit; UNIDENTIFIED PETERSON, Ms., Nurse, Coffield Unit,

Defendants-Appellees. _________________________________________________________________

Appeal from the United States District Court for the Eastern District of Texas USDC No. 6:98-CV-489 _________________________________________________________________

December 29, 1999

Before JOLLY, JONES, and SMITH, Circuit Judges.

PER CURIAM:*

Alphonso Smith appeals from the dismissal of his civil rights

action for failure to exhaust prison administrative remedies.

Smith contends that he did not need to exhaust prison

administrative remedies because those remedies do not allow

prisoners to collect damages. He alleges that he pursued

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. administrative remedies at both steps and that he was told that he

could not obtain damages.

We cannot determine whether Smith actually exhausted his

administrative remedies. Smith alleges facts suggesting that he

did so for the first time on appeal. United States v. Vital,

(5th Cir. 1995).

Smith failed to object to the magistrate judge’s report and

recommendations. His contentions are reviewed under the plain-

error standard. Douglass v. United Servs. Auto. Assn.,

(5th Cir. 1996)(en banc).

A prisoner need not exhaust prison administrative remedies

pursuant to 42 U.S.C. § 1997e(a) if he seeks only damages and

grievance procedures do not allow for damage awards. Whitley v.

Hunt,

(5th Cir. 1998). Smith’s response to the

magistrate judge’s order to prove exhaustion indicated that he

sought only damages. The district court in Smith’s case plainly

erred by failing to find whether Texas prisoners may obtain damages

in prison grievance proceedings and failing to determine whether

the exhaustion requirement applies to Texas prisoners seeking only

damages. The district court’s dismissal of Smith’s complaint for

non-exhaustion is VACATED and the cause is REMANDED for the

district court to address whether monetary relief is available

through the Texas prison grievance procedure.

VACATED and REMANDED.

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