UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JAMES FRANCIS; DONNA FRANCIS,
Plaintiffs-Appellants,

v.

HELEN M. BARNES, Chairperson;
JANE D. WELLONS; BRENDA J.
JENNINGS; MICHAEL H. ANDERSON;
JOHN W. HANKLEY; ROBERT G.
                                                                    No. 98-1236
ZAVA; ALVESTER L. EDMONDS; CAROL
COLLINS, Superintendent, in their
individual and official capacities;
OTHER UNKNOWN AGENTS; COUNTY OF
LUNENBERG, individually and
severally,
Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Robert R. Merhige, Jr., Senior District Judge.
(CA-97-658)

Submitted: October 30, 1998

Decided: November 16, 1998

Before MURNAGHAN and MOTZ, Circuit Judges, and PHILLIPS,
Senior Circuit Judge.

_________________________________________________________________

Affirmed as modified in part, and vacated in part and remanded by
unpublished per curiam opinion.

_________________________________________________________________
COUNSEL

James Francis, Donna Francis, Appellants Pro Se. Daniel T. Balfour,
BEALE, BALFOUR, DAVIDSON, ETHERINGTON & PARKER,
Richmond, Virginia, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Appellants appeal from the district court's order dismissing their
seventeen count complaint without prejudice for failure to exhaust
state remedies. We affirm as modified in part, and vacate in part, and
remand.

Appellants contend that the Defendants' denial of a religious
exemption to Virginia's compulsory school attendance statute* and
the corresponding requirement that Appellants' children return to
school violate their right to free exercise of religion under the First
Amendment. They also allege that the procedures employed by
Defendants violated their rights to procedural due process. The dis-
trict court noted that Va. Code Ann. § 22.1-87 (Michie 1997) provides
relief in the form of judicial review from school board decisions and
thus dismissed the Appellants' action without prejudice for failure to
exhaust.

We conclude that this dismissal for failure to exhaust was in error.
In McNeese v. Board of Education, 373 U.S. 668, 671 (1963), the
Supreme Court reiterated that relief under 42 U.S.C.A. § 1983 (West
Supp. 1998) may not be defeated because relief was not first sought
under state law. See McCray v. Burrell, 516 F.2d 357, 361-62 (4th
_________________________________________________________________
*Va. Code Ann. § 22.1-257(B)(2) (Michie 1997).

                    2
Cir. 1975). Thus, Appellants' claims cannot be dismissed simply
because they failed to take advantage of state-provided relief from an
adverse school board decision.

Despite this determination, we affirm the dismissal of claims (1),
(2), (4)-(6), and (8)-(17), but modify the court's order to reflect dis-
missal with prejudice. Claims (1)-(2), and (4)-(6) fail to state a claim
on the facts alleged and claims (8)-(17) allege crimes rather than civil
causes of action. While we express no opinion as to the merits, we
conclude that claims (3) and (7), asserting the due process and free
exercise violations, may be viable claims.

In Claim 3, Appellants assert that they were deprived of a liberty
interest without due process because they were not provided notice
and an opportunity to be heard prior to the school board's decision
denying them a religious exemption. The record before us is insuffi-
cient to ascertain whether the Appellants received sufficient notice of
the school board's hearing. We therefore vacate the district court's
order as to that claim and remand for further proceedings.

In Claim 7, the Appellants assert that the Defendants conspired to
deprive them of their right to free exercise of religion in violation of
42 U.S.C. § 1985 (1994). Reading the Appellants' complaint in its
entirety, we conclude that it may adequately allege a free exercise
claim under § 1983. See Cruz v. Beto, 405 U.S. 319, 322 (1972);
Gordon v. Leeke, 574 F.2d 1174, 1151 (4th Cir. 1978). We therefore
vacate the district court's order as to Appellants' allegation that denial
of a religious exemption under Va. Code Ann. § 22.1-257 violated
their First Amendment right to the free exercise of religion under
§ 1983 and remand that claim to the district court for further proceed-
ings.

Accordingly, we affirm the district court order as modified in part,
vacate it in part, and remand for further proceedings consistent with
this opinion. We dispense with oral argument because the facts and
legal contentions are adequately set forth in the materials before the
court and argument would not aid the decisional process.

AFFIRMED AS MODIFIED IN PART;
VACATED IN PART AND REMANDED

                     3
