908 F.2d 968Unpublished Disposition
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.David RIGGS, Plaintiff-Appellant,v.Stephen GREINER;  R.O. Woodyard;  R.W. Schuman;  F.F.Parsons;  S.A. Stephens;  John Doe;  Frank Foe;Wood County, West Virginia;  City ofVienna, West Virginia,Defendants-Appellees.
No. 89-6416.
United States Court of Appeals, Fourth Circuit.
Submitted:  Jan. 31, 1990.Decided:  June 26, 1990.

Appeal from the United States District Court for the Southern District of West Virginia, at Parkersburg.  Charles H. Haden, II, Chief District Judge.  (C/A No. 88-1197).
David Riggs, appellant pro se.
S.D.W.Va.
AFFIRMED.
Before SPROUSE, Circuit Judge, and HARRISON L. WINTER* and BUTZNER, Senior Circuit Judges.
PER CURIAM:


1
David Riggs appeals the district court's order denying his request for the reinstatement of his 42 U.S.C. Sec. 1983 action.  As decided by the district court, reinstatement is not proper in this case.  Riggs v. Greiner, C/A No. 88-1197 (S.D.W.Va. Oct. 23, 1989).  However, because Riggs' Sec. 1983 suit attacking the validity of his conviction was dismissed by the district court without prejudice, he may refile.  If Riggs is no longer in the custody of the State of West Virginia, as stated in his request for reinstatement, then he may refile his Sec. 1983 action without first exhausting state remedies.   See Todd v. Baskerville, 712 F.2d 70, 73 (4th Cir.1983).  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.

AFFIRMED


*
 Judge Winter participated in the consideration of this case but died prior to the time the decision was filed.  The decision is filed by a quorum of the panel.  28 U.S.C. Sec. 46(d)


