Sherlocke Evan Francis Holmes, Plaintiff-appellant, v. Sheriff, Virginia Beach City Jail, G. Jeffery Mason,virginia Beach Public Defender's Office,defendants-appellees, 831 F.2d 1057 (4th Cir. 1987)

Sherlocke Evan Francis Holmes, a Virginia in mate, sued his court-appointed standby counsel and the Virginia Beach Sheriff under 42 U.S.C. § 1983 complaining of misadvice and a denial of access to the legal resources necessary to defend against criminal charges brought against him by the Commonwealth of Virginia. Finding that, at its core, Holmes' complaint called into question the validity of his state conviction and that Holmes had not exhausted his state remedies, the district court dismissed the complaint without prejudice.

The district court properly required exhaustion in this case. Hamlin v. Warren, 664 F.2d 29 (4th Cir. 1981), cert. denied, 455 U.S. 911 (1982). On appeal Holmes maintains that, since dismissal of his complaint by the district court, he has completed exhaustion of state remedies, and that his allegations state a basis for relief under Sec. 1983. Where exhaustion is completed after dismissal without prejudice of an action by the district court, this Court will affirm the dismissal. See Salama v. Virginia, 605 F.2d 1329 (4th Cir. 1979). Holmes is free to refile his Sec. 1983 complaint, Virginia's two-year statute of limitations for his claims not yet having expired. A claim for relief may be stated under Sec. 1983 for denial, by one acting under color of state law, see Polk County v. Dodson, 454 U.S. 312 (1981), of reasonable access to the courts. See Magee v. Waters, 810 F.2d 451 (4th Cir. 1987). The district court's dismissal of Holmes' complaint without prejudice does not inhibit his filing of a new § 1983 complaint after exhaustion of state remedies.

The judgment of the district court is affirmed. We dispense with oral argument because the dispositive issues have recently been decided authoritatively.

AFFIRMED.