Green v. Shaw ( 1998 )

UNPUBLISHED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Vacated and remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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 com-
plaints, 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 Dis-
trict 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 com-
plaint, 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 condi-
tions must first exhaust "such administrative remedies as are avail-
able." 42 U.S.C.A. § 1997e (West Supp. 1998). Here, Green stated
that he filed grievances, and at least one appeal, but that prison offi-
cials 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 commence-
ment of suit in federal court constituted such delay that Green's griev-
ances 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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