OpenJurist

852 F2d 567 Welch v. Boyce

852 F.2d 567
Unpublished Disposition

Van Prince WELCH, Plaintiff-Appellant,
v.
Major BOYCE; Frank Carr, Nurse; Dr. Henceroth; J.H.
Snodgrass, Defendants- Appellees.
Van Prince WELCH, Plaintiff-Appellant,
v.
Gerald BALILES; Edward Murray; J.H. Snodgrass,
Defendants-Appellees.
Van Prince WELCH, Plaintiff-Appellant,
v.
J.H. SNODGRASS; Margaret Urquhart, Defendants-Appellees.

Nos. 88-7090, 88-7091 and 88-7092.

United States Court of Appeals, Fourth Circuit.

Submitted: May 27, 1988.
Decided: July 20, 1988.

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.

Van Prince Welch, appellant pro se.

Before MURNAGHAN, SPROUSE and WILKINS, Circuit Judges.

PER CURIAM:

1

Van Prince Welch, a Virginia inmate proceeding pro se, filed these civil actions pursuant to 42 U.S.C. Sec. 1983. The district court dismissed the actions without prejudice under 42 U.S.C. Sec. 1997e due to Welch's failure to exhaust administrative remedies. The cases have been consolidated on appeal. We vacate the district court's orders and remand for proceedings consistent with this opinion.

2

In No. 88-7090, Welch alleged that in June of 1986, the defendants medical personnel and prison authorities violated his constitutional rights by failing to operate on his injured hand and by forcing him to work on a road gang despite the injury. In No. 88-7091, Welch complained of overcrowding, noise, and secondhand cigarette smoke in the prison. In No. 88-7092, Welch asserted that the defendants denied him access to the courts in September of 1987 when they recommended that Welch pursue administrative remedies rather than file a court action. In each case, Welch sought only monetary damages; he did not seek injunctive or declaratory relief.

3

The district court entered orders giving Welch 100 days to demonstrate exhaustion of administrative remedies pursuant to 42 U.S.C. Sec. 1997e. Welch wrote a letter to the court in each case arguing that he should not be required to pursue administrative relief because the Virginia prison grievance procedure allegedly did not provide the only relief he sought, money damages. The district court entered orders in response to the letters, ordering Welch to exhaust. The court did not specifically address Welch's contention that exhaustion was unnecessary due to the unavailability of money damages. Upon Welch's failure to submit documents demonstrating exhaustion, the court dismissed the actions without prejudice.

4

Although a district court has the authority to require exhaustion of administrative remedies, under 42 U.S.C. Sec. 1997e, and to dismiss for failure to exhaust, the dismissals in the instant case, though ostensibly "without prejudice," may, in effect, be with prejudice due to possible statute of limitations problems Welch may face upon refiling the actions. See Va.Code Sec. 8.01-243(A); Wilson v. Garcia, 471 U.S. 261 (1985). Therefore, the district court should have stayed the proceedings pending resolution of whether the Virginia prison grievance procedure provides damages for the causes of action asserted by Welch.

5

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.

6

VACATED AND REMANDED.