UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 95-6862

JAMES B. MITCHELL, Plaintiff - Appellant, versus UNITED STATES MARSHALS SERVICE, Defendant - Appellee.

Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Albert V. Bryan, Jr., Senior District Judge. (CA-95-251-AM)

Submitted: January 11, 1996 Decided: January 23, 1996

Before RUSSELL, HALL, and WILKINSON, Circuit Judges.

Affirmed as modified by unpublished per curiam opinion.

James B. Mitchell, Appellant Pro Se. Lynn M. Powalski, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).

PER CURIAM: Appellant appeals from the district court's order granting summary judgment to Appellee. We have reviewed the record and find that the district court did not err in concluding that Appellant's complaint failed to state a cognizable claim. However, because Appellant failed to allege misconduct for which the United States has waived its sovereign immunity, the district court should have dismissed Appellant's complaint under Fed. R. Civ. P. 12(b)(1), for lack of subject matter jurisdiction. See Williams v. United States, 50 F.3d 299, 301, 309-11 (4th Cir. 1995). Accordingly, we affirm the district court's order as modified to reflect a dismissal for lack of jurisdiction under Rule 12(b)(1). 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