11-1504-cv
Hassan Saleh v. Holder


                         UNITED STATES COURT OF APPEALS
                             FOR THE SECOND CIRCUIT

                                 SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL
RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING
A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE
FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”).
A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.

     At a stated term of the United States Court of Appeals for
the Second Circuit, held at the Daniel Patrick Moynihan United
States Courthouse, 500 Pearl Street, in the City of New York, on
the 22nd day of May, two thousand twelve.

PRESENT:
          JON O. NEWMAN,
          CHESTER J. STRAUB,
          GERARD E. LYNCH,
               Circuit Judges.
_____________________________________

Tarek Youssef Hassan Saleh,

                          Plaintiff-Appellant,

                  v.                                    11-1504-cv

Eric H. Holder, Jr., Attorney
General of the United States, et
al.,

                          Defendants-Appellees.

_____________________________________


FOR PLAINTIFF-APPELLANT:                 TAREK YOUSSEF HASSAN SALEH, pro se,
                                         Brooklyn, NY.

FOR DEFENDANTS-APPELLEES:                EDWARD SCARVALONE (David Rivera, on
                                         the brief), Doar Rieck Kaley &
                               Mack, New York, NY, for Defendant-
                               Appellee Mahmoud Elrammal.

                               NATASHA OELTJEN, Assistant United
                               States Attorney (David S. Jones,
                               Assistant United States Attorney,
                               on the brief), for Preet Bharara,
                               United States Attorney for the
                               Southern District of New York.

     Appeal from a judgment of the United States District Court

for the Southern District of New York (Batts, J., Gorenstein,

M.J.).

     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED in

part and VACATED in part and the case is REMANDED to the district

court to modify the judgment so as to dismiss Appellant’s claims

under the Federal Tort Claims Act (“FTCA”) without prejudice.

     Appellant Tarek Youssef Hassan Saleh, proceeding pro se,

appeals the district court’s judgment dismissing his amended

complaint with prejudice.   We assume the parties’ familiarity

with the underlying facts, the procedural history of the case,

and the issues on appeal.

     We review de novo a district court's dismissal of a

complaint under Federal Rules of Civil Procedure 12(b)(1) and

12(b)(6), accepting as true the factual allegations in the

complaint and drawing all reasonable inferences in the

plaintiff's favor.   See Macias v. Zenk, 495 F.3d 37, 40 (2d Cir.

2007); Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d

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Cir. 2006).

     The district court correctly determined that it lacked

subject matter jurisdiction over Saleh's FTCA claims because he

had not exhausted his administrative remedies prior to filing his

initial district court complaint.   See 28 U.S.C. § 2675; McNeil

v. United States, 508 U.S. 106, 111-13 (1993).   However, as the

Government acknowledges, in such a situation the proper course of

action is for the district court to dismiss the claims without

prejudice to allow the litigant to institute a separate new

action once exhaustion has been completed.   See Neal v. Goord,

267 F.3d 116, 123 (2d Cir. 2001), abrogated on other grounds by

Porter v. Nussle, 534 U.S. 516, 524 (2002); Snider v. Melindez,

199 F.3d 108, 111-12 (2d Cir. 1999); see also Macias, 495 F.3d at

39-40 (affirming dismissal without prejudice of unexhausted FTCA

claims).   Thus, the district court erred in denying Saleh’s FTCA

claims with prejudice.

     Having conducted an independent review of the record, we

affirm the remainder of the district court’s judgment dismissing

Saleh’s amended complaint for substantially the same reasons

stated in the magistrate judge’s report and recommendation and in

the district court’s order.   We have considered all of Saleh’s

remaining arguments on appeal and find them to be without merit.

Accordingly, the judgment of the district court is hereby

AFFIRMED in part and VACATED in part, and the case is REMANDED


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for the district court to enter judgment dismissing Saleh’s

claims under the FTCA without prejudice.


                              FOR THE COURT:
                              Catherine O’Hagan Wolfe, Clerk




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