IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-40750 Summary Calendar

ROBERT LEE POWE,

Plaintiff-Appellant,

versus

GILBERT L. ENNIS, Sergeant, Beto I; ET AL.,

Defendants.

GILBERT L. ENNIS, Sergeant, Beto I; M. ALLEN, Correctional Officer III, Beto I; DAVID M. RAYMOND, Correctional Officer III, Beto I,

Defendants-Appellees,

-------------------- Appeal from the United States District Court for the Eastern District of Texas USDC No. 6:97-CV-905 -------------------- October 22, 2002

Before DAVIS, WIENER and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Robert Lee Powe, Texas prisoner # 616956, appeals the

district court’s sua sponte dismissal without prejudice of his

suit for failure to exhaust. This court previously

determined that Powe had exhausted administrative remedies when

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 01-40750 -2-

he filed a step one and step two grievance and “the state’s time

for responding thereto ha[d] expired,” and remanded the case for

further proceedings. Powe v. Ennis,

(5th Cir.

1999). The district court determined that the decision in Powe

was erroneous in light of the Supreme Court’s decision in Booth

v. Churner,

(2001).

We read Booth as requiring a prisoner to exhaust prison

administrative remedies even when the grievance procedures do not

allow the relief sought by the prisoner. See Booth,

. In Powe, this court determined when a claim may be

considered exhausted. Powe,

. Booth did not

overrule this court’s decision in Powe. The district court’s

judgment is VACATED and this case is REMANDED for further

proceedings.