James Aaron HAYES, Plaintiff-Appellant, v. Jeffrey STANLEY; Nora Hunt; Delaney Godwin; Correctional Officer Schoolcraft; Theodis Beck, Defendants-Appellees, 137 F. App'x 565

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)® (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, 124 S.Ct. 2071, 158 L.Ed.2d 623 (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 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., 407 F.3d 674, 683 (4th Cir.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.