                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 03-7020



GARY IVAN TERRY,

                                            Plaintiff - Appellant,

          versus


DARLENE A. VELTRI, Warden; JEFF TILLEY,
Discipline Hearing Officer; RODNEY TABRON,
Unit Manager; TONY PARKS, Senior Correctional
Officer; THERESA WOODS, Senior Correctional
Officer,

                                           Defendants - Appellees.


Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (CA-02-697-5-F)


Submitted:   January 30, 2004          Decided:     February 24, 2004


Before WIDENER, WILLIAMS, and TRAXLER, Circuit Judges.


Affirmed as modified by unpublished per curiam opinion.


Gary Ivan Terry, Appellant Pro Se.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

              Gary   Ivan   Terry   appeals    the   district     court’s   order

dismissing his complaint filed pursuant to Bivens v. Six Unknown

Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), for

failure to exhaust administrative remedies.                The district court

properly required exhaustion of administrative remedies under 42

U.S.C. § 1997e(a) (2000). Because Terry did not demonstrate to the

district court that he had exhausted administrative remedies or

that such remedies were not available, the court’s dismissal of the

action was not an abuse of discretion.           Terry may refile his action

after exhaustion; therefore, we modify the dismissal to be without

prejudice.      See 28 U.S.C. § 2106 (2000).             Accordingly, we grant

leave to proceed in forma pauperis and affirm the district court’s

order as modified.          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 AS MODIFIED




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