                                                                            F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                                AUG 4 2003
                                  TENTH CIRCUIT
                                                                         PATRICK FISHER
                                                                                  Clerk

 JIMMY L. STROZIER,

               Plaintiff-Appellant,                        No. 03-1126
          v.                                              (D. Colorado)
 JACK POTTER, Postmaster General,                  (D.C. No. 02-N-379 (CBS))
 United States Postal Service,

               Defendant-Appellee.


                             ORDER AND JUDGMENT           *




Before EBEL , HENRY , and HARTZ , Circuit Judges.


      Pro se Plaintiff Jimmy L. Strozier appeals the district court’s dismissal of

his Title VII lawsuit for lack of subject matter jurisdiction. Concluding that

Plaintiff failed to satisfy the jurisdictional prerequisite of exhausting his

administrative remedies prior to filing suit, the district court dismissed his case



      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.   This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
with prejudice. We agree that the district court lacked jurisdiction. But because a

dismissal for lack of subject matter jurisdiction should be without prejudice, we

must reverse and remand with instructions to dismiss Plaintiff’s case without

prejudice. Plaintiff’s motion to proceed in forma pauperis is granted.

      Plaintiff is employed by the United States Postal Service (USPS).

Defendant Jack Potter is Postmaster General of the United States. Plaintiff

alleges that he suffered race and sex discrimination in the workplace, and that he

was retaliated against for engaging in activity protected by Title VII. Plaintiff

initially filed an informal complaint about the alleged discrimination with the

USPS’s Equal Employment Opportunity (EEO) office and began pursuing his

complaints through the USPS’s internal process. On February 19, 2002, however,

Plaintiff withdrew his EEO complaint. That same day he filed a motion in federal

district court under 28 U.S.C. § 1915, seeking leave to proceed in forma pauperis

with a civil lawsuit. His pro se complaint was filed on February 26.

      Defendant moved under Federal Rule of Civil Procedure 12(b)(1) to

dismiss Plaintiff’s complaint for lack of subject matter jurisdiction, arguing that

Plaintiff had failed to satisfy the jurisdictional prerequisite of exhausting his

administrative remedies prior to filing suit. See Khader v. Aspin, 1 F.3d 968,

970-71 (10th Cir. 1993). The matter was referred to a magistrate judge, who

recommended that Plaintiff’s case be dismissed based on the jurisdictional defect


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noted by Defendant. The magistrate judge also recommended that Plaintiff be

denied leave to amend his complaint. Plaintiff filed timely objections to the

magistrate judge’s report and recommendation. The district court rejected those

objections, adopting the report and recommendation and dismissing Plaintiff’s

case with prejudice.

      On appeal Plaintiff does not challenge the district court’s decision

regarding his failure to exhaust administrative remedies. He argues only that the

court erred by dismissing his claim with prejudice, contending that dismissals for

lack of subject matter jurisdiction should be without prejudice. We agree.

      A district court’s dismissal for lack of subject matter jurisdiction should be

without prejudice. See Hernandez v. Conriv Realty Assoc., 182 F.3d 121, 123-24

(2d Cir. 1999) (“Article III deprives federal courts of the power to dismiss a case

with prejudice where federal subject matter jurisdiction does not exist.”); In re

Orthopedic “Bone Screw” Prod. Liab. Litig., 132 F.3d 152, 155 (3d Cir. 1997)

(“If a case, over which the court lacks subject matter jurisdiction, was originally

filed in federal court, it must be dismissed. . . . The disposition of such a case

will, however, be without prejudice.”); cf. Hollander v. Sandoz Pharm. Corp., 289

F.3d 1193, 1216-17 (10th Cir. 2002) (dismissal for lack of personal jurisdiction

should be without prejudice). Thus, we REVERSE the district court’s dismissal




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with prejudice and REMAND with instructions to dismiss Plaintiff’s case without

prejudice.

                                     ENTERED FOR THE COURT


                                     Harris L Hartz
                                     Circuit Judge




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