Zander v. Lappin , 415 F. App'x 491 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-6484
ROBERT ALEX ZANDER,
Plaintiff – Appellant,
v.
HARLEY LAPPIN; KIM WHITE; GERALDO MALDONADO, JR.; RONALD W.
RIKER; TRACY W. JOHNS; JOSEPH P. YOUNG; KENNETH MOTTERN,
Defendants – Appellees.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Louise W. Flanagan,
Chief District Judge. (5:08-ct-03117-FL)
Submitted: January 28, 2011 Decided: March 10, 2011
Before WILKINSON, NIEMEYER, and KING, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Robert Alex Zander, Appellant Pro Se. Rudolf A. Renfer, Jr.,
Assistant United States Attorney, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Robert Alex Zander appeals the district court’s order
dismissing without prejudice his civil action filed pursuant to
Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics,
403 U.S. 388 (1971), for failure to exhaust administrative
remedies. Zander argues on appeal, as he did below, that the
actions of prison officials rendered those remedies
“unavailable” to him.
“[A]n administrative remedy is not considered to have
been available if a prisoner, through no fault of his own, was
prevented from availing himself of it.” Moore v. Bennette, 517
F.3d 717, 725 (4th Cir. 2008). Thus, “when prison officials
prevent inmates from using the administrative process . . ., the
process that exists on paper becomes unavailable in reality.”
Kaba v. Stepp, 458 F.3d 678, 684 (7th Cir. 2006). Accordingly,
the district court is “obligated to ensure that any defects in
exhaustion were not procured from the action or inaction of
prison officials.” Aquilar-Avellaveda v. Terrell, 478 F.3d
1223, 1225 (10th Cir. 2007).
In this case, the district court did not address
Zander’s allegations that prison officials hindered his ability
to exhaust his administrative remedies. We therefore vacate the
district court’s order granting summary judgment to Defendants
and remand for a determination of whether the grievance
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procedure was “available” to Zander within the meaning of 42
U.S.C. § 1997e(a) (2006) so that he could administratively
exhaust his claim. We 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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