James Preston Smith, Plaintiff-appellant, v. Edward Murray, Director; David Garraghty, Warden; Virginiadepartment of Corrections, Defendants-appellees, 902 F.2d 30 (4th Cir. 1990)

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US Court of Appeals for the Fourth Circuit - 902 F.2d 30 (4th Cir. 1990) Submitted April 2, 1990. Decided April 16, 1990

Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Richard L. Williams, District Judge. (C/A No. 89-578-R)

James Preston Smith, appellant pro se.

E.D. Va.


Before ERVIN, Chief Judge, and PHILLIPS and CHAPMAN, Circuit Judges.


Virginia inmate James Preston Smith appeals the district court's dismissal without prejudice of his 42 U.S.C. § 1983 action for failure to demonstrate administrative exhaustion of the claims raised in the complaint. We affirm.

Smith alleged, among other things, improper confiscation of certain radio equipment upon his arrival at Nottaway Correctional Center, denial of access to a law library, and refusal by prison officials to correct false information in his prison file. The district court ordered Smith to exhaust administrative remedies pursuant to 42 U.S.C. § 1997e and to advise the court within 100 days of the result of the administrative proceedings. The order also warned that failure to advise the court regarding exhaustion would result in dismissal of the action. During the next month, Smith submitted a number of documents in an attempt to comply with the court order, but the district court determined that Smith had not yet complied because he had not demonstrated exhaustion of all his claims through Level III of the grievance procedure. Smith submitted no further response within the 100-day period, and the court dismissed the action.

Our review of the record reveals that Smith has exhausted his institutional remedies through Level III with respect to the confiscation of radio equipment. However, Smith has not complied with the exhaustion order as to the remaining claims raised in the complaint; nor has he sought to abandon those claims and proceed only on the exhausted claim. We accordingly affirm the judgment of the district court. Because the dismissal was without prejudice and because the radio claim has been administratively exhausted, Smith may file another Sec. 1983 action raising that claim if he wishes. Similarly, once the other claims have been exhausted, Smith may raise those claims in a Sec. 1983 action.

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.