UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 97-7675

WILLIAM M. THORPE,

Plaintiff - Appellant,

versus

J. D. NETHERLAND, Warden; C. N. LEWIS, Assis- tant Warden,

Defendants - Appellees.

Appeal from the United States District Court for the Eastern Dis- trict of Virginia, at Norfolk. J. Calvitt Clarke, Jr., Senior District Judge. (CA-97-13-2)

Submitted: March 12, 1998 Decided: March 26, 1998

Before LUTTIG, WILLIAMS, and MICHAEL, Circuit Judges.

Affirmed by unpublished per curiam opinion.

William M. Thorpe, Appellant Pro Se. Rick Randall Linker, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellees.

Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM:

Appellant appeals the district court's order dismissing his

(1994) complaint without prejudice for failure to ex-

haust administrative remedies. The district court properly required exhaustion of administrative remedies under 42 U.S.C.A. § 1997e(a)

(West Supp. 1997). Because Appellant 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, without prejudice, was proper.* We therefore affirm the district court's order. We also deny Appellant's motion for ap-

pointment of counsel and dispense with oral argument because the

facts and legal contentions are adequately presented in the mate- rials before the court and argument would not aid the decisional

process.

AFFIRMED

* To the extent it is unclear, the dismissal is without preju- dice. See Leaf v. Supreme Court of Wisconsin,

(7th Cir. 1992) (because a dismissal for lack of subject matter is not a decision on the merits, dismissal should be without prejudice). 2