Joseph P. Payne, Sr., Plaintiff-appellant, v. Thomas B. Fairburn; Garland K. Stokes; William P. Rogers;john Taylor; Edward W. Murray; Fred E. Jordan;sam Filipio; John Latane Lewis, Iii;john Does, Defendants-appellees, 995 F.2d 1063 (4th Cir. 1993)

OPINION

Joseph P. Payne appeals the district court's denial of his Fed. R. Civ. P. 60(b) motion which urged the district court to hold his 42 U.S.C. § 1983 (1988) action in abeyance pending the exhaustion of state remedies. Payne's original action challenged the constitutionality of his confinement and sought damages. See Hamlin v. Warren, 664 F.2d 29 (4th Cir. 1981), cert. denied, 455 U.S. 911 (1982).

We have previously directed the district court to place Payne's action in abeyance, Payne v. Fairburn, No. 88-6870 (4th Cir. Apr. 17, 1990) (unpublished), and reminded the district court of our concern, Payne v. Fairburn, No. 91-7222 (4th Cir. Dec. 13, 1991) (unpublished). Payne is attempting to exhaust state remedies and his inability to do so quickly cannot be attributed to him. Our concern about the statute of limitations remains. Accordingly, we vacate the district court's decision and remand the case for placement in abeyance pending exhaustion of state remedies. Payne should continue to advise the district court of the status of his state proceedings. 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