Melvin Murtis Austin v. United States of America

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 00-7087
MELVIN MURTIS AUSTIN,
Plaintiff - Appellant,
versus
UNITED STATES OF AMERICA; UNITED STATES DE-
PARTMENT OF JUSTICE; BUREAU OF PRISONS,
Defendants - Appellees.
Appeal from the United States District Court for the Eastern Dis-
trict of North Carolina, at Raleigh. James C. Fox, District Judge.
(CA-00-198-5-F)
Submitted: December 12, 2000 Decided: December 28, 2000
Before WILLIAMS and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed as modified by unpublished per curiam opinion.
Melvin Murtis Austin, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
Local Rule 36(c).

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PER CURIAM:
Melvin Murtis Austin appeals the district court’s order dis-
missing his Federal Torts Claim Act complaint for failure to
exhaust administrative remedies. Based on the information before
the district court, the court properly dismissed the action for
failure to exhaust. Accordingly, we affirm on the reasoning of the
district court. Austin v. United States, No. CA-00-198-5-F
(E.D.N.C. July 25, 2000). Because Austin may refile his action
after exhaustion, we modify the dismissal to be without prejudice.
28 U.S.C. § 2106 (1994). We decline to consider in the first
instance materials that may be proof of exhaustion that Austin at-
tached to his informal brief filed in this court. We dispense with
oral argument because the facts and legal contentions are adequate-
ly presented in the materials before the court and argument would
not aid the decisional process.
AFFIRMED AS MODIFIED

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