George Paul Laroque, Plaintiff-appellant, v. Carl Pendell; Ed Cramer; Federal Correctional Institute,butner, Defendants- Appellees.george Paul Laroque, Plaintiff-appellant, v. Us Bureau of Prisons; Southeast Regional Office; Wallaceh. Cheney, Defendants-appellees, 861 F.2d 714 (4th Cir. 1988)

George Paul LaRoque, a federal prisoner, appeals the district court's grant of his motion for a voluntary dismissal of his Federal Tort Claims Act suit (No. 88-7109). He also appeals the district court's dismissal of his Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), action for failure to exhaust administrative remedies (No. 88-6626). In addition, he has filed motions for "Immediate and Emergency Injunctive Relief" in this Court and has asked that the appeals be expedited. We dismiss the appeal in No. 88-7109, modify and affirm the judgment in No. 88-6626, and deny the motions to expedite the appeals and for emergency injunctive relief.

In No. 88-7109, LaRoque asks that we vacate the voluntary dismissal of his Federal Tort Claims Act suit and order the district court to rule on the motions for preliminary injunctive relief that he made in that action. Voluntary dismissals are unappealable if the dismissal was without prejudice and any conditions the plaintiff placed on the dismissal were met. 9 C. Wright & A. Miller, Federal Practice and Procedure: Civil 2d Sec. 2376, at 247. The dismissal in this case was without prejudice, even though the district court did not expressly so state, as dismissals under Fed. R. Civ. P. 41(a) (2) are without prejudice " [u]nless otherwise specified in the order." In addition, neither LaRoque nor the district court placed any conditions on the voluntary dismissal. Thus, the voluntary dismissal in No. 88-7109 is unappealable. Compare Unioil, Inc. v. E.F. Hutton & Co. Inc., 809 F.2d 548, 555-56 (9th Cir. 1986) (collecting cases which discuss when appeal is permitted if dismissal is conditional), cert. denied, 56 U.S.L.W. 3217-18 (U.S. Oct. 5, 1987) (No. 86-1894).

In No. 88-6626, LaRoque appeals the district court's dismissal of his claim that prison employees had harassed him in retaliation for his litigation activities. The district court dismissed this action for failure to exhaust administrative remedies. See Veteto v. Miller, 794 F.2d 98, 100 (3d Cir. 1986); Miller v. Stanmore, 636 F.2d 986, 991 n. 5 (5th Cir. 1981). Brice v. Day, 604 F.2d 664, 665-67 (10th Cir. 1979), cert. denied, 444 U.S. 1086 (1980).

LaRoque argues that he adequately exhausted administrative remedies. He also notes that the exhaustion requirement can be waived.

We find that LaRoque has not exhausted administrative remedies and that the district court did not abuse its discretion in requiring exhaustion. To exhaust administrative remedies, a prisoner generally must appeal to the Office of the General Counsel. 28 C.F.R. Sec. 542.15. The only grievance that LaRoque appealed to the General Counsel was the denial of his request for documents in connection with one alleged instance of harassment. This appeal was insufficient to satisfy the exhaustion requirement because LaRoque did not ask for any relief from the alleged harassment. Accordingly, we affirm the district court's finding that LaRoque had not exhausted administrative remedies. We modify the court's judgment, however, to state that the dismissal is without prejudice. See Veteto, 794 F.2d at 100.

The judgment in No. 88-6626 is affirmed as modified, and the appeal in No. 88-7109 is dismissed. We dispense with oral argument because the facts and legal arguments are adequately presented in the materials before the Court and oral argument would not significantly aid the decisional process.

No. 88-6626, MODIFIED AND AFFIRMED:^* 

No. 88-7109, DISMISSED^*