James Kerr, Sr., Plaintiff-appellant, v. State of South Carolina; William J. Sidoran; Melvin R.cumbee; Eldridge H. Ellett, Iii; Edward S. Whitlock;raymond F. Wright; William H. Wiggins; Joseph D. Powell;judy Ann Fink; Detective Griffin, Defendants-appellees, 896 F.2d 1367 (4th Cir. 1990)

James Kerr, Sr., appeals from the district court's order dismissing his 42 U.S.C. § 1983 complaint for failure to submit proof of exhaustion. Our review of the record and the district court's opinion accepting the recommendation of the magistrate 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 Kerr 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. § 2106 to reflect that the dismissal is without prejudice, and affirm as modified on the reasoning of the district court. Kerr v. State of South Carolina, C/A No. 89-725 (D.S.C. Aug. 25, 1989). 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.