Jabir Na'im Pasha; Fred Graves, Plaintiffs-appellants, v. Correctional Medical Services (cms); Karen C. Alleyne, Dr.(cms Physician); J. Allen, Sergeant, Dietaryofficer (cdd), Defendants-appellees.jabir Na'im Pasha, Plaintiff-appellant, v. Correctional Medical Services (cms); Karen C. Alleyne,doctor, (cms Physician); J. Allen, Sergeant,correctional Dietary Officer (cdd),defendants-appellees, 902 F.2d 29 (4th Cir. 1990)

Jabir Na'im Pasha and Fred Graves, Maryland prisoners, commenced this 42 U.S.C. § 1983 action challenging the conditions of their confinement. The district court dismissed the action without prejudice because Pasha and Graves failed to demonstrate exhaustion of administrative remedies. A motion dated within ten days of the entry of judgment, excluding weekends and holidays, was filed; the district court denied the motion. A notice of appeal, dated the same day as the motion, was filed before the motion was denied (No. 90-7010); a second notice of appeal was filed later (No. 90-7020).

The post-judgment motion is treated as a motion under Fed. R. Civ. P. 59 because it was filed within 10 days of the district court's order. Dove v. CODESCO, 569 F.2d 807, 809 (4th Cir. 1978). Because the notice of appeal was filed prior to the district court's denial of the motion, that notice of appeal was a nullity. Fed. R. App. P. 4(a) (4); Griggs v. Provident Consumer Discount Co., 459 U.S. 56 (1982). Therefore we dismiss the appeal in No. 90-7010.

The second notice of appeal gives the court jurisdiction to consider the merits of the district court's dismissal of the action without prejudice for failure to exhaust administrative remedies. The district court could properly require exhaustion of administrative remedies under 42 U.S.C. § 1997e. Its dismissal of the action, without prejudice, when appellant failed to provide evidence of proper exhaustion was not an abuse of discretion. We therefore affirm the judgment below in No. 90-7020. 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.

No. 90-7010: DISMISSED

No. 90-7020: AFFIRMED