                                     UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                          No. 16-2052


WILLIAM C. PUMPHREY,

                     Plaintiff - Appellant,

              v.

JOE COAKLEY; O. GIBSON; J. D. JAMES; J. BAILEY; B. COLEMAN; T.
TONEY; D. DUNCAN; C. SPENCER; A. LESTER; F. RIFFLE; S. DENNY; J.
GROGAN; D. AKERS; U. M. SNOW; DR. WEAVER; J. FORD; J. WILLIAMS;
E. HARVEY; HEAD; U. M. SMITH; KNOLL, and four (4) unnamed Federal Bureau
of Prisoners staff members, et. al.,

                     Defendants – Appellees,

              and

UNITED STATES OF AMERICA,

                     Party-in-Interest.



Appeal from the United States District Court for the Southern District of West Virginia, at
Beckley. Irene C. Berger, District Judge. (5:15-cv-14430)


Submitted: March 31, 2017                                        Decided: April 11, 2017


Before KING, AGEE, and WYNN, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.
William C. Pumphrey, Appellant Pro Se. Christopher Crews, OFFICE OF THE UNITED
STATES ATTORNEY, Beaver, West Virginia; Stephen Michael Horn, Assistant United
States Attorney, Charleston, West Virginia, for Appellees.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

       William Pumphrey, a federal prisoner, appeals the district court’s order accepting

the recommendation of the magistrate judge and granting summary judgment to

Defendants on his claims under Bivens v. Six Unknown Named Agents of Federal Bureau

of Narcotics, 403 U.S. 388 (1971). The district court determined that Pumphrey had not

exhausted his available administrative remedies, as the Prison Litigation Reform Act, 42

U.S.C. § 1997e(a) (2012), requires. Pumphrey argues that, to the extent that he failed to

exhaust administrative remedies, those remedies were unavailable to him because prison

staff delayed and destroyed his legal and interdepartmental mail, including administrative

grievances and appeals, and refused to provide him the forms necessary to file the required

grievances and appeals. We vacate the court’s order and remand for further proceedings.

       We “review[] de novo the district court’s order granting summary judgment.”

Jacobs v. N.C. Admin. Office of the Courts, 780 F.3d 562, 565 n.1 (4th Cir. 2015); see

Custis v. Davis,   F.3d    ,   , No. 15-7533, 2017 WL 1097130, at *2 (4th Cir. Mar. 23,

2017) (applying de novo review to “dismissal for failure to exhaust available administrative

remedies”). “A district court ‘shall grant summary judgment if the movant shows that there

is no genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.’” Jacobs, 780 F.3d at 568 (quoting Fed. R. Civ. P. 56(a)). “A dispute is

genuine if a reasonable jury could return a verdict for the nonmoving party.” Id. (internal

quotation marks omitted). In determining whether a genuine issue of material fact exists,

“we view the facts and all justifiable inferences arising therefrom in the light most

favorable to . . . the nonmoving party.” Id. at 565 n.1 (internal quotation marks omitted).

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“Credibility determinations, the weighing of the evidence, and the drawing of legitimate

inferences from the facts are jury functions, not those of a judge . . . ruling on a motion for

summary judgment.”       Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

Moreover, summary judgment is not appropriate “where the nonmoving party has not had

the opportunity to discover information that is essential to his opposition.” Id. at 250 n.5.

       In this case, Pumphrey and the prison staff members he accused of obstructing his

ability to exhaust his administrative remedies filed competing affidavits regarding whether

prison staff delayed or destroyed Pumphrey’s mail and refused to provide Pumphrey the

materials necessary to exhaust his administrative remedies. The district court found

Pumphrey to be less credible than the prison staff and granted summary judgment in favor

of Defendants.     We conclude that the district court improperly made a credibility

determination at the summary judgment stage, and without permitting discovery. See

Gray v. Spillman, 925 F.2d 90, 95 (4th Cir. 1991) (“It is not our job to weight the evidence,

to count how many affidavits favor the plaintiff and how many oppose him, or to disregard

stories that seem hard to believe.”).

       For the foregoing reasons, we vacate the district court’s judgment and remand this

matter for further proceedings consistent with this opinion. We deny as moot Pumphrey’s

motion to submit for decision and motion seeking ruling. We dispense with oral argument

because the facts and legal contentions are adequately presented in the materials before this

court and argument would not aid the decisional process.

                                                              VACATED AND REMANDED



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