UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

GEORGE S. GREEN, JR.,

Plaintiff-Appellant,

v. No. 97-7670

DOCTOR SHAW, Psychiatrist,

Defendant-Appellee.

Appeal from the United States District Court

for the Eastern District of Virginia, at Norfolk.

Robert G. Doumar, Senior District Judge.

(CA-97-887-2)

Submitted: August 11, 1998

Decided: December 17, 1998

Before LUTTIG, WILLIAMS, and MICHAEL, Circuit Judges.

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Vacated and remanded by unpublished per curiam opinion.

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COUNSEL

George S. Green, Jr., Appellant Pro Se.

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Unpublished opinions are not binding precedent in this circuit.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:

George S. Green, a Virginia prisoner, filed a 42 U.S.C.A. § 1983

(West Supp. 1998) action in the district court. Green filed three complaints, each against a separate defendant, asserting essentially the

same claim. The district court treated the three complaints as one

action and dismissed the suit for failure to exhaust administrative

remedies.*

Green's complaints were on standard forms from the Eastern District of Virginia. In response to the questions on the first form, Green

stated that he filed a grievance with no result. He appealed and was

"still waiting on response." He alleged, however, that "time has ran

out, state official violation the procedure rules." In his second complaint, Green asserted that he filed a grievance, as a result of which

the "unit manager have refuse/fail to have me seen by a doctor to be

treated." Green stated that he did not appeal, because his grievances

were not timely answered. Finally, in his third complaint, Green

alleged that he filed a grievance with no result. He again did not

appeal due to his dissatisfaction with the grievance procedure.

The district court dismissed Green's complaint without prejudice

for failure to exhaust his administrative remedies. The court stated

that "[p]laintiff, in his complaint, admits that he has not attempted to

avail himself of the administrative remedies available." Green noted

a timely appeal to this court.

A prisoner seeking to bring an action with respect to prison conditions must first exhaust "such administrative remedies as are available." 42 U.S.C.A. § 1997e (West Supp. 1998). Here, Green stated

that he filed grievances, and at least one appeal, but that prison officials failed to respond. The district court was, therefore, mistaken

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*While the district court's caption in its dismissal order listed all three

Defendants, the district court's docket sheet only lists Defendant Shaw.

Because the case was dismissed sua sponte, none of the Defendants

responded or even entered appearances below. On remand, the district

court should address the issues raised in each of Green's complaints.

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when it stated that Green admitted he had not attempted to file a

grievance. Thus, we vacate the district court's dismissal and remand

for further proceedings. On remand, the district court may request

documentation and conduct further inquiry to determine whether

Green properly followed administrative channels and whether the

lapse in time between the filing of his grievances and his commencement of suit in federal court constituted such delay that Green's grievances could be deemed denied. We deny Green's motion for an ex

parte hearing and dispense with oral argument because the facts and

legal contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.

VACATED AND REMANDED

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