                            UNPUBLISHED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Affirmed as modified by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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).
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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