Quentin Eugene Ashby, Plaintiff-appellant, v. Ex-warden Rollins; Bernard Smith, Ex-assistant Warden;sergeant Mitchell, Defendants-appellees, 979 F.2d 847 (4th Cir. 1992)

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US Court of Appeals for the Fourth Circuit - 979 F.2d 847 (4th Cir. 1992) Submitted: October 29, 1992Decided: November 20, 1992

Appeal from the United States District Court for the District of Maryland, at Baltimore. M. J. Garbis, District Judge. (CA-92-1284-MJG)

Quentin Eugene Ashby, Appellant Pro Se.

D. Md.

Vacated and remanded.

Before HALL, WILKINS, and HAMILTON, Circuit Judges.

PER CURIAM:


OPINION

Quentin Eugene Ashby appeals the district court's order dismissing without prejudice this action filed under 42 U.S.C.s 1983 (1988). Because we find the district court abused its discretion, we vacate and remand for further proceedings.

Acting pursuant to 42 U.S.C. § 1997e (1988), the district court on May 13, 1992, ordered Ashby to exhaust administrative remedies and to advise the court within one hundred days of the result of the administrative proceedings. It warned Ashby that failure to advise the court regarding exhaustion would result in a dismissal. On August 13, ninety-one days later, the district court dismissed the suit without any indication in the record whether Ashby planned on filing a response in the remaining time period. The order to show exhaustion gave Ashby one hundred days in which to do so. It was an abuse of discretion for the district court to dismiss Ashby's action prematurely.

The district court's order is vacated and the case remanded for further 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