                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 05-6455



RASHID QAWI AL-AMIN,

                                            Plaintiff - Appellant,

          versus


LINDA SHEAR, in her individual and official
capacities; RUFUS FLEMING, in his individual
and official capacities; G. P. WILLIAMS, in
his individual and official capacities; D. M.
FERGUSON, in his/her individual and official
capacities; S. J. ADVENT, in his individual
and official capacities; S. BAYLOR, in his
individual and official capacities; CHARLIE
DAVIS,   in  his   individual   and   official
capacities; M. L. POPE, in his individual and
official capacities; MR. FERROW, in his
individual   and   official   capacities;   C.
ALDERMAN, in his individual and official
capacities; B. BROCK, in his individual and
official capacities,

                                           Defendants - Appellees,

           and


GENE JOHNSON, in his official capacity,

                                                        Defendant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Raymond A. Jackson, District
Judge. (CA-04-346-2)
Argued:   May 25, 2006                Decided:   February 21, 2007


Before WILLIAMS and MICHAEL, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Vacated and remanded by unpublished per curiam opinion.


ARGUED: Paul F. Rugani, Third Year Law Student, UNIVERSITY OF
VIRGINIA   SCHOOL    OF   LAW,   Appellate   Litigation    Clinic,
Charlottesville, Virginia, for Appellant. Mark Ralph Davis, Senior
Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL,
Richmond, Virginia, for Appellees.    ON BRIEF: Neal L. Walters,
Pauletta J. Brown, Third Year Law Student, UNIVERSITY OF VIRGINIA
SCHOOL OF LAW, Appellate Litigation Clinic, Charlottesville,
Virginia, for Appellant. Judith W. Jagdmann, Attorney General,
Richmond, Virginia, for Appellees.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

        Rashid Qawi Al-Amin contends that the district court erred in

dismissing his suit for failure to exhaust administrative remedies;

in the alternative, Al-Amin contends that the district court should

have dismissed any unexhausted claims from his complaint and

allowed his exhausted claims to proceed forward.             In light of the

Supreme Court’s decision in Jones v. Bock, 549 U.S. __ (Jan. 22,

2007), we conclude that the district court erred in dismissing all

of Al-Amin’s claims; accordingly, we vacate the district court’s

order and remand for further proceedings.



                                      I.

         Rashid Qawi Al-Amin is a state prisoner at the Greensville

Correctional Center in Virginia. In 1991, Al-Amin formerly changed

his name from Donald Tracy Jones to Rashid Qawi Al-Amin after

converting to Islam.         In 1999, Al-Amin was transferred to the

Greensville Correctional Center, where the prison officials have

refused to recognize his legal name change.             Over a period of

years, Al-Amin filed several administrative grievances relating to

his name and the accommodation of his religious practices at the

prison.    In May 2004, Al-Amin filed the present suit in the Eastern

District of Virginia alleging violations of 42 U.S.C.A. § 1983

(West     2003   &   Supp.   2006)   and   the   Religious   Land   Use   and

Institutionalized Persons Act (RLUIPA), 42 U.S.C.A. § 2000c et seq.


                                       3
(West 2003 & Supp. 2006).          Al-Amin divided his claims into five

broad categories:       (1) the prison’s “failure to give proper effect

to [a] court order which legally changed his name,” (2) the “denial

of religious diet during Ramadan,” (3) the “discriminate denial of

religious material,” (4) the “discriminate imposition of [a] burden

on his right to observe his religious prayer,” and (5) “inadequate

religious diet.”       (J.A. at 7-8.)        Contained within Al-Amin’s first

issue were the following grievances:              (a) he was denied incoming

and outgoing mail privileges unless he used the name “Jones”; (b)

he was denied access to his inmate account unless he used the name

“Jones”; (c) the prison staff continues to refer to him as “Jones”

and   threatens   him    with   disciplinary       action   if   he   refuses    to

acknowledge the name “Jones”; and (d) the prison requires him to

use “Jones” to receive (1) his medication, (2) his daily meals, (3)

medical services, and (4) to attend religious services.                  Al-Amin

requested a declaratory judgment and compensatory damages.

      The named prison system defendants (the prison officials)

moved to dismiss Al-Amin’s complaint, alleging that Al-Amin had not

exhausted his administrative remedies on each of the claims.                     In

support of its motion to dismiss, the prison system submitted the

affidavit   of    R.    Woodson,   the       Grievance   Coordinator     at     the

Greensville Correctional Center.             Woodson stated that Al-Amin had

exhausted his administrative remedies “pertaining to [the] denial

of his religious diet during Ramadan,” “pertaining to an Islamic


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videotape and two audio tapes he purchased to donate to the

chaplain library,” and “pertaining to Muslims being denied the

right to pray in common areas.”               (J.A. at 59-60.)     Woodson could

find no grievance petitions relating to the seven claims listed

under Al-Amin’s “Failure to give proper Effect to the Court order”

heading. In response to the prison system’s motion to dismiss, Al-

Amin    stated   that   he   had    a    copy   of    the    exhausted   grievance

pertaining to the denial of access to his inmate account and copies

of a grievance filed on January 14, 2004, pertaining to the medical

and food services departments’ failure to recognize his legal name

and his inability to receive incoming or outgoing mail under that

name.

       The district court granted the prison system’s motion to

dismiss Al-Amin’s complaint without prejudice.                 The district court

based its decision only on a review of the facts related to Al-

Amin’s claims concerning the prison system’s alleged failure to

give effect to the court order, reasoning that Al-Amin had not

exhausted his administrative remedies on his claims relating to his

inability to send or receive mail under his legal name, the prison

system’s   requirement       that   he   use    the   name    “Jones”    to   attend

religious services, threats by prison staff requiring him to

acknowledge the name “Jones,” and the medical and food service

departments’ refusal to recognize his new name. The district court

did find, however, that Al-Amin exhausted his grievance relating to


                                          5
the denial of access to his inmate account. The district court

deemed it unnecessary to further review the complaint because it

found that the failure to exhaust these claims required dismissal

of the entire complaint without prejudice under 42 U.S.C.A. § 1997e

(West 2003 & Supp. 2006).         The district court interpreted §

1997e(a)’s language -- that “[n]o action shall be brought with

respect to prison conditions . . . until such administrative

remedies as are available are exhausted” -- to require it to

dismiss Al-Amin’s suit in its entirety.       Al-Amin timely appealed.



                                  II.

       Before we may examine the § 1997e issue, we must first assure

ourselves that Al-Amin has presented us with a final appealable

order under 28 U.S.C.A. § 1291 (West 2006).        “Generally, an order

dismissing a complaint without prejudice is not an appealable final

order under 28 U.S.C. § 1291 when ‘the plaintiff could save his

action by merely amending his complaint.’”        Young v. Nickols, 413

F.3d 416, 418 (4th Cir. 2005)(quoting Domino Sugar Corp. v. Sugar

Workers Local Union 392, 10 F.3d 1064, 1066-67 (4th Cir. 1993)).

The posture of Al-Amin’s suit is similar to that of the plaintiff’s

in Domino Sugar.       In   Domino Sugar, the district court had

dismissed the Company’s complaint without prejudice “on account of

the Company’s failure to exhaust contractual remedies.”           Id. at

1067   (internal   alteration   and   quotation   marks   omitted).   We


                                      6
concluded that the district court’s order was final and appealable

because no amendment to the complaint could cure the defect and

because the district court “essentially made a final ruling that

the Company had to proceed to arbitration before seeking judicial

relief.”   Id.   Here, the district court issued a similar ruling; it

required Al-Amin to proceed with the administrative grievance

process prior to seeking judicial relief.             Because the alleged

defect in Al-Amin’s action is not apparent on the face of his

complaint, such as a pleading error, the defect cannot be remedied

through    an   amendment   to   the    complaint.*   We,   therefore,   are

satisfied that we have jurisdiction under 28 U.S.C.A. § 1291.



                                       III.

     Having satisfied ourselves that Al-Amin’s appeal presents us

with a final appealable order, we turn to the merits of his case.

“Whether a district court properly required a plaintiff to exhaust

her administrative remedies before bringing suit in federal court

is a question of law. . . . Therefore, we review the district




     *
      In Anderson v. XYZ Corr. Health Servs., Inc., 407 F.3d 674,
681 (4th Cir. 2005), we held that an inmate is not required to
allege exhaustion of remedies in his complaint; instead, we viewed
an inmate’s failure to exhaust remedies as an affirmative defense.
Id. The Supreme Court recently affirmed this understanding. See
Jones v. Bock, 549 U.S. __, __(Jan. 22, 2007) (slip op. at 15) (“We
conclude that failure to exhaust is an affirmative defense under
the PLRA, and that inmates are not required to specially plead or
demonstrate exhaustion in their complaints.”).

                                        7
court’s order de novo.”            Talbot v. Lucy Corr Nursing Home, 118 F.3d

215, 218 (4th Cir. 1997).

      It is undisputed that the Prisoner Litigation Reform Act

(PLRA) requires prisoners to exhaust their administrative remedies

before seeking relief in the federal courts.                           42 U.S.C.A. §

1997e(a);       see   also    Woodford      v.    Ngo,   126    S.    Ct.   2378,   2384

(2006)(“There is no dispute that [the] language [of § 1997(e)]

requires a prisoner to ‘exhaust’ administrative remedies. . . .”).

Here, however, we must determine the proper course for a district

court to follow when a prisoner’s complaint contains a mixture of

unexhausted and exhausted claims.                 Because this issue has divided

the courts, the Supreme Court granted certiorari to decide, inter

alia, whether the PLRA prescribes a “total exhaustion rule” that

requires    a    district     court    to    dismiss     a     prisoner’s    complaint

whenever that complaint contains multiple claims and at least one

of those claims is not exhausted.                We held decision in this case in

abeyance pending the Court’s opinion.

      In Jones v. Bock, the Supreme Court answered that question in

the negative.         549 U.S. __, __(Jan. 22, 2007) (slip op. at 20-23).

The   district        court   in    Jones    had    dismissed        prisoner   Jones’s

complaint because it failed to allege how he had exhausted his

administrative remedies.            On appeal, the Sixth Circuit held in the

alternative that “even if Jones had shown he had exhausted some of

his claims, the district court properly dismissed the compliant


                                            8
because Jones did not show that he had exhausted all of his

claims.”   Jones v. Bock, 135 Fed. Appx. 837, 839 (6th Cir. 2006)

(per curiam).     The Supreme Court reversed the Sixth Circuit’s

holding and remanded for further proceedings.     In so doing, the

Court explained that the correct path for a district court to take

under the PLRA when faced with multiple claims, some of which are

exhausted and some of which are not, is to “proceed[] with the good

and leave[] the bad.”   Jones, 549 U.S. at __ (slip. op. at 21).   In

short, “only the bad claims [should be] dismissed; the complaint as

a whole [should] not.”     Id. (internal alteration and quotation

marks omitted).

     Here, the district court “adopt[ed] the total exhaustion rule

for complaints governed by the PLRA,” (J.A. at 186), and dismissed

Al-Amin’s complaint after finding that he had failed to exhaust

administrative remedies “for some claims raised in this action,”

(J.A. at 187.)    In light of the Supreme Court’s opinion in Jones,

however, we can now say with certainty that the district court’s

interpretation of the statue was incorrect.     The district court

committed legal error in reading a total exhaustion requirement

into the PLRA.



                                IV.

     Because the district court erred in interpreting the PLRA to

require total exhaustion, we vacate its judgment and remand for


                                  9
further proceedings.   Although Al-Amin also contends that the

district court erred in finding that some of his claims were not

exhausted, we find no error in the district court’s specific

exhaustion determinations.   But because the district court was

operating under the mistaken assumption that the PLRA required

total exhaustion, it found only that some of Al-Amin’s claims were

not exhausted, which made it unnecessary to address whether his

remaining claims had been exhausted.   Accordingly, we leave it for

the district court to address in the first instance all of Al-

Amin’s remaining claims and determine which of those claims have

been properly exhausted.



                                              VACATED AND REMANDED




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