McEvily v. Ordile , 43 F. App'x 584 ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
MICHAEL MCEVILY, 
Plaintiff-Appellant,
v.
 No. 02-6419
KIM ORDILE; KIM AUSTIN; DARYL
PAYNE; J. D. TERRY; SCOTT BUSH,
Defendants-Appellees.

Appeal from the United States District Court
for the Western District of Virginia, at Roanoke.
Samuel G. Wilson, Chief District Judge.
(CA-01-297-7)
Submitted: July 25, 2002
Decided: August 8, 2002
Before WILKINS, MOTZ, and TRAXLER, Circuit Judges.
Affirmed in part and vacated and remanded in part by unpublished
per curiam opinion.
COUNSEL
Michael McEvily, Appellant Pro Se. Pamela Anne Sargent, Assistant
Attorney General, Richmond, Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 MCEVILY v. ORDILE
OPINION
PER CURIAM:
Michael McEvily appeals the district court’s orders denying relief
on his 42 U.S.C.A. § 1983 (West Supp. 2002) complaint. Our review
of the record leads us to conclude that the district court prematurely
dismissed McEvily’s claim that his prison’s substance abuse treat-
ment program violated the Establishment Clause of the First Amend-
ment. We have previously held that standing to assert an
Establishment Clause claim requires direct contact with the offending
practice, but that a plaintiff’s change in conduct so as to avoid the
offensive practice does not serve to negate standing. Suhre v. Hay-
wood County, 131 F.3d 1083, 1086-88 (4th Cir. 1997); cf. Taylor v.
Rogers, 781 F.2d 1047, 1048 n.1 (4th Cir. 1986) (noting that transfer
of inmate moots only claims for declatory and injunctive relief). On
the present record, we are unable to conclude that the district court
correctly found that McEvily lacked standing to assert this claim.
We have reviewed the record and the district court’s opinion dis-
missing McEvily’s remaining claims and find no reversible error.
Accordingly, we deny McEvily’s motion for appointment of counsel,
vacate the district court’s order dismissing McEvily’s Establishment
Clause claim, and remand for further proceedings on that claim, and
affirm the district court’s judgment dismissing McEvily’s remaining
claims on the reasoning of the district court. See McEvily v. Ordile,
No. CA-01-297-7 (W.D. Va. June 13, 2001; Jan. 31, 2002).
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED IN PART AND
VACATED AND REMANDED IN PART