                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 16-1364


JAAMAL FLEMING,

                  Plaintiff - Appellant,

          v.

VIRGINIA STATE UNIVERSITY; KATRINA WALKER; COMMONWEALTH OF
VIRGINIA,

                  Defendants - Appellees.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.  M. Hannah Lauck, District
Judge. (3:15-cv-00268-MHL)


Submitted:   October 21, 2016               Decided:   December 2, 2016


Before NIEMEYER, SHEDD, and HARRIS, Circuit Judges.


Affirmed as modified by unpublished per curiam opinion.


Jaamal Fleming, Appellant Pro Se. Liza Shawn Simmons, Assistant
Attorney General, Richmond, Virginia, for Appellees.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

      Jaamal     Fleming      appeals    from       the    district          court’s    order

dismissing     his     civil        action       for    lack      of     subject       matter

jurisdiction      on   the     basis     of       Eleventh       Amendment          immunity.

The district court did not reversibly err in concluding that it

lacked subject matter jurisdiction over Fleming’s complaint, and

we reject his arguments on appeal to the contrary.                                The court’s

dismissal,       however,      should        have       been      without          prejudice.

See S. Walk at Broadlands Homeowner’s Assoc., Inc. v. OpenBand

at    Broadlands,      LLC,     713     F.3d      175,     185        (4th    Cir.     2013).

We therefore grant leave to proceed in forma pauperis, modify

the   district    court’s      order    to       reflect       that    the    dismissal    of

Fleming’s complaint for lack of subject matter jurisdiction is

without    prejudice,         and     affirm      the      dismissal         as     modified.

See 28 U.S.C. § 2106 (2012); MM ex rel. DM v. Sch. Dist. of

Greenville Cty., 303 F.3d 523, 536 (4th Cir. 2002) (“[W]e are

entitled to affirm the court’s judgment on alternate grounds, if

such grounds are apparent from the record.”).

      We dispense with oral argument because the facts and legal

contentions      are   adequately       presented         in    the    materials       before

this court and argument would not aid the decisional process.



                                                                  AFFIRMED AS MODIFIED



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