                               UNPUBLISHED

                      UNITED STATES COURT OF APPEALS
                          FOR THE FOURTH CIRCUIT


                               No. 04-7976



JAMES AARON HAYES,

                                               Plaintiff - Appellant,

             versus


JEFFREY STANLEY; NORA HUNT; DELANEY GODWIN;
CORRECTIONAL OFFICER SCHOOLCRAFT; THEODIS
BECK,

                                              Defendants - Appellees.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Louise W. Flanagan, Chief
District Judge. (CA-03-759)


Submitted:    May 31, 2005                    Decided:   June 27, 2005


Before WILKINSON and TRAXLER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed in part, vacated in part, and remanded by unpublished per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


James Aaron Hayes, Appellant Pro Se. James Philip Allen, NORTH
CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for
Appellees.


Unpublished opinions are not binding precedent in this circuit.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

           James Aaron Hayes appeals the district court’s orders

(1)   dismissing      one     claim     as    frivolous       under    28    U.S.C.

§ 1915(e)(2)(B)(i) (2000), and denying his motion for a preliminary

injunction in this action filed under 42 U.S.C. § 1983 (2000); and

(2)   dismissing     the    remaining    §   1983    claims    under    28   U.S.C.

§ 1997e(a) (2000) for failure to exhaust administrative remedies.

We have reviewed the record and find no reversible error in the

court’s order described in (1) above.               Accordingly, we affirm for

the reasons stated by the district court.               See Hayes v. Stanley,

No. CA-03-759 (E.D.N.C. filed Dec. 1, 2003 & entered Dec. 3, 2003).

           Turning to the order described in (2) above, we find

that, contrary to the district court’s conclusion, the record

reflects that Hayes completed each step of the grievance procedure

regarding his access to courts claim.                 See Alexander v. Tippah

County, Miss., 351 F.3d 626, 629 (5th Cir. 2003) (stating that

appellate court reviews de novo dismissal for failure to exhaust),

cert. denied, 541 U.S. 1012 (2004).                 We therefore vacate this

portion of the district court’s order and remand for further

proceedings.

           As to the remaining claims dismissed for failure to

exhaust,     Hayes    alleged     that       administrative      remedies      were

unavailable to him because Defendants lost, destroyed, or delayed

processing    his    grievances.        Defendants      did    not    refute   this


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allegation, and it is their burden to plead and prove that an

inmate failed to exhaust administrative remedies.   Anderson v. XYZ

Corr. Health Servs., Inc., __ F.3d __, 2005 WL 1154156, at *9 (4th

Cir. May 17, 2005) (No. 04-6885).*     Accordingly, we vacate this

portion of the district court’s order and remand for further

proceedings.

          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 IN PART,
                                      VACATED IN PART, AND REMANDED




     *
      We note that the district court did not have the benefit of
our decision in Anderson when it issued its order.

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