Terry v. Veltri ( 2004 )

UNPUBLISHED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Affirmed as modified by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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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