                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 98-2164
                                   ___________

Willie James Henderson,               *
                                      *
             Appellant,               *
                                      * Appeal from the United States
       v.                             * District Court for the
                                      * Eastern District of Arkansas.
Kenneth S. Apfel, Commissioner of     *    [UNPUBLISHED]
Social Security,                      *
                                      *
             Appellee,                *
                                      *
State of Arkansas,                    *
                                      *
             Defendant.               *
                                 ___________

                          Submitted: November 4, 1998
                              Filed: November 17, 1998
                                  ___________

Before WOLLMAN, HANSEN, and MURPHY, Circuit Judges.
                          ___________

PER CURIAM.

       Willie James Henderson appeals the district court&s1 dismissal of his action
against the Secretary of Health and Human Services. Henderson, acting pro se and in

      1
       The Honorable Jerry W. Cavaneau, United States Magistrate Judge for the
Eastern District of Arkansas, to whom the case was referred for final disposition by
consent of the parties pursuant to 28 U.S.C. § 636(c).
forma pauperis, filed a complaint naming the Secretary as the only defendant.

        This court reviews de novo the district court&s dismissal of a complaint for lack
of subject matter jurisdiction based on failure to exhaust administrative remedies. See
United States v. Dico, Inc., 136 F.3d 572, 575 (8th Cir. 1998). To the extent this
lawsuit seeks review of a disability claim currently pending before the Social Security
Administration (SSA) we agree with the district court that Henderson had not
exhausted his administrative remedies, as evidence submitted by the SSA showed that
Henderson’s request for reconsideration was pending when he filed this action. See 20
C.F.R. § 416.1400(a) (1998) (listing steps of administrative review leading to final
decision). Even assuming that Henderson is attempting to bring an action for a
disability claim other than the one addressed by the Commissioner, he failed to show
that he exhausted his remedies with the SSA. Accordingly, his complaint was properly
dismissed. See 42 U.S.C. § 405(g) (claimant may seek judicial review only after final
decision by Commissioner following hearing); Rowden v. Warden, 89 F.3d 536, 537-
38 (8th Cir. 1996) (court must dismiss for lack of subject matter jurisdiction if plaintiff
fails to exhaust administrative remedies without cause); Titus v. Sullivan, 4 F.3d 590,
593 (8th Cir. 1993) (plaintiff must allege elements necessary for subject matter
jurisdiction).

      Consistent with exhaustion principles, however, we modify the dismissal to be
without prejudice. Cf. Calico Trailer Mfg. Co. v. Insurance Co. of North America, No.
97-3355, 1998 WL 569128, at *2 (8th Cir. Sept. 9, 1998); Seniority Research Group
v. Chrysler Motor Corp., 976 F.2d 1185, 1189 (8th Cir. 1992).

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

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