UNPUBLISHED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Affirmed in part, vacated in part, and remanded by unpublished per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Unpublished opinions are not binding precedent in this circuit.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).
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, 

(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.          

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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