UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 97-7006

KEVIN SMITH, a/k/a Bar-None-Royal Blackness, Plaintiff - Appellant, versus

RICHARD ROUSE; TERRELL CANNON, SR.; T. HALL; VAUGHN JACKSON; BOBBY RUTHERFORD; LAURIE BESSINGER, Defendants - Appellees.

Appeal from the United States District Court for the District of South Carolina, at Rock Hill. Patrick Michael Duffy, District Judge. (CA-96-1900-0-23BD)

Submitted: January 27, 1998 Decided: April 20, 1998

Before WILKINS, HAMILTON, and MOTZ, Circuit Judges.

Affirmed as modified by unpublished per curiam opinion.

Kevin Smith, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.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 42 U.S.C. § 1983 (1994) complaint for failure to exhaust administra- tive remedies as frivolous under 28 U.S.C.A. § 1915(e)(2)(B)(i) (West Supp. 1997). 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, the court's dis- missal of the action was not an abuse of discretion. We therefore affirm the district court's order but modify it to reflect that the dismissal is without prejudice to Appellant's right to refile the action after exhaustion. We 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 AS MODIFIED