917 F2d 22 Peterson v. Nc Parole Commission

917 F.2d 22
Unpublished Disposition

Elmer Leon PETERSON, Petitioner-Appellant,
NC PAROLE COMMISSION, Louis R. Colombo, Cecelia M. Goetz,
Wanda J. Garrett, Katrena B. Horton, Arlene C.
Pulley, Joseph E. Slate, Respondents-Appellees.

No. 90-7106.

United States Court of Appeals, Fourth Circuit.

Submitted Oct. 1, 1990.
Decided Oct. 26, 1990.
Rehearing and Rehearing In Banc Denied Nov. 20, 1990.

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.

Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Malcolm J. Howard, District Judge. (CA-90-352-CRT-H)

Elmer Leon Peterson, appellant pro se.



Before DONALD RUSSELL and PHILLIPS, Circuit Judges, and BUTZNER, Senior Circuit Judge.


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Elmer Leon Peterson appeals from the district court's order dismissing his 42 U.S.C. Sec. 1983 complaint for failure to submit proof of exhaustion. Our review of the record and the district court's opinion discloses that this appeal is without merit. We note, however, that the district court's dismissal should have stated that it was without prejudice, thus allowing Peterson to refile his complaint once he has demonstrated exhaustion of his claims. Accordingly, we modify the district court's judgment pursuant to our authority under 28 U.S.C. Sec. 2106 to reflect that the dismissal is without prejudice, and affirm as modified on the reasoning of the district court. Peterson v. NC Parole Commission, CA-90-352-CRT (E.D.N.C. Aug. 16, 1990). We grant leave to appeal in forma pauperis and 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.