UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JAMES FRANCIS; DONNA FRANCIS,

Plaintiffs-Appellants,

v.

HELEN M. BARNES, Chairperson;

JANE D. WELLONS; BRENDA J.

JENNINGS; MICHAEL H. ANDERSON;

JOHN W. HANKLEY; ROBERT G.

No. 98-1236

ZAVA; ALVESTER L. EDMONDS; CAROL

COLLINS, Superintendent, in their

individual and official capacities;

OTHER UNKNOWN AGENTS; COUNTY OF

LUNENBERG, individually and

severally,

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of Virginia, at Richmond.

Robert R. Merhige, Jr., Senior District Judge.

(CA-97-658)

Submitted: October 30, 1998

Decided: November 16, 1998

Before MURNAGHAN and MOTZ, Circuit Judges, and PHILLIPS,

Senior Circuit Judge.

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Affirmed as modified in part, and vacated in part and remanded by

unpublished per curiam opinion.

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COUNSEL

James Francis, Donna Francis, Appellants Pro Se. Daniel T. Balfour,

BEALE, BALFOUR, DAVIDSON, ETHERINGTON & PARKER,

Richmond, Virginia, for Appellees.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Appellants appeal from the district court's order dismissing their

seventeen count complaint without prejudice for failure to exhaust

state remedies. We affirm as modified in part, and vacate in part, and

remand.

Appellants contend that the Defendants' denial of a religious

exemption to Virginia's compulsory school attendance statute* and

the corresponding requirement that Appellants' children return to

school violate their right to free exercise of religion under the First

Amendment. They also allege that the procedures employed by

Defendants violated their rights to procedural due process. The district court noted that Va. Code Ann. § 22.1-87 (Michie 1997) provides

relief in the form of judicial review from school board decisions and

thus dismissed the Appellants' action without prejudice for failure to

exhaust.

We conclude that this dismissal for failure to exhaust was in error.

In McNeese v. Board of Education, 373 U.S. 668, 671 (1963), the

Supreme Court reiterated that relief under 42 U.S.C.A. § 1983 (West

Supp. 1998) may not be defeated because relief was not first sought

under state law. See McCray v. Burrell, 516 F.2d 357, 361-62 (4th

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*Va. Code Ann. § 22.1-257(B)(2) (Michie 1997).

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Cir. 1975). Thus, Appellants' claims cannot be dismissed simply

because they failed to take advantage of state-provided relief from an

adverse school board decision.

Despite this determination, we affirm the dismissal of claims (1),

(2), (4)-(6), and (8)-(17), but modify the court's order to reflect dismissal with prejudice. Claims (1)-(2), and (4)-(6) fail to state a claim

on the facts alleged and claims (8)-(17) allege crimes rather than civil

causes of action. While we express no opinion as to the merits, we

conclude that claims (3) and (7), asserting the due process and free

exercise violations, may be viable claims.

In Claim 3, Appellants assert that they were deprived of a liberty

interest without due process because they were not provided notice

and an opportunity to be heard prior to the school board's decision

denying them a religious exemption. The record before us is insufficient to ascertain whether the Appellants received sufficient notice of

the school board's hearing. We therefore vacate the district court's

order as to that claim and remand for further proceedings.

In Claim 7, the Appellants assert that the Defendants conspired to

deprive them of their right to free exercise of religion in violation of

42 U.S.C. § 1985 (1994). Reading the Appellants' complaint in its

entirety, we conclude that it may adequately allege a free exercise

claim under § 1983. See Cruz v. Beto, 405 U.S. 319, 322 (1972);

Gordon v. Leeke, 574 F.2d 1174, 1151 (4th Cir. 1978). We therefore

vacate the district court's order as to Appellants' allegation that denial

of a religious exemption under Va. Code Ann. § 22.1-257 violated

their First Amendment right to the free exercise of religion under

§ 1983 and remand that claim to the district court for further proceedings.

Accordingly, we affirm the district court order as modified in part,

vacate it in part, and remand for further proceedings consistent with

this opinion. We dispense with oral argument because the facts and

legal contentions are adequately set forth in the materials before the

court and argument would not aid the decisional process.

AFFIRMED AS MODIFIED IN PART;

VACATED IN PART AND REMANDED

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