Perry E. Thornley, Jr v. Johnson, No. CA-03-689 E.D. Va. Jun. 24, 2004 . We conclude, however, that the…

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-7362
PERRY E. THORNLEY, JR.,
Plaintiff - Appellant,
versus
GENE JOHNSON, Regional Director; RUFUS
FLEMING, Warden, Associate Regional Director;
GEORGE HINKLE, GRCC Chief Warden; KEITH DAVIS,
Associate Warden; A. TILLERY, Grievance
Coordinator; CHRISTOPHER MITCHELL, Lieutenant,
Defendants - Appellees.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. David G. Lowe, Magistrate
Judge. (CA-03-689)
Submitted: February 23, 2005 Decided: March 3, 2005
Before WILKINSON, MOTZ, and DUNCAN, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
Perry E. Thornley, Jr., Appellant Pro Se. William W. Muse,
Assistant Attorney General, Richmond, Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).

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PER CURIAM:
Perry E. Thornley, Jr., a Vermont inmate temporarily
housed in a Virginia prison at the time of the events giving rise
to his suit under 42 U.S.C. § 1983 (2000), appeals the orders of
the magistrate judge granting summary judgment to all but one
defendant and subsequently dismissing the complaint without
prejudice as to the remaining defendant.
We have reviewed the record and conclude that the
magistrate judge properly granted summary judgment to all
defendants other than Lt. Mitchell. Accordingly, we affirm the
grant of summary judgment for the reasons stated by the magistrate
judge. See Thornley v. Johnson, No. CA-03-689 (E.D. Va. Jun. 24,
2004).
We conclude, however, that the magistrate judge erred in
dismissing the complaint because Thornley’s incarceration prevented
him from being present on the scheduled trial date. We have
previously articulated a three-factor test for determining the
proper disposition of a prisoner’s complaint when the prisoner’s
presence at trial is at issue. Muhammad v. Warden, 849 F.2d 107
(4th Cir. 1988). In promulgating these factors, we encouraged
district courts to explain the basis for their decision in order to
allow effective appellate review. Id. In this case, although the
magistrate judge considered the lack of funds for transporting
Thornley or appointing counsel to represent him and the prejudice

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to the defendant that would result from delaying the proceedings
until Thornley is released from prison, we are unable to discern
whether, and to what extent, he considered the other factors.
We therefore vacate the order of the magistrate judge
dismissing Thornley’s complaint as to Lt. Mitchell and remand for
reconsideration. We express no opinion as to the merits of
Thornley’s complaint. 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

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