Coy Ray Phelps, Petitioner Appellant, v. J. T. Hadden, Warden; J. Jenkins, Captain; S. Johnson,associate Warden; D. Wilson, Seclusion Manager; Mr.herbal, Direct Care M.d.; Unknown Employees, Butner Federalcorrectional Institution, Respondents Appellees, 27 F.3d 563 (4th Cir. 1994)

Coy Ray Phelps, a federal inmate at FCI-Butner, appeals the district court's dismissal of his action for failure to exhaust his administrative remedies. Although styled as a petition for writ of habeas corpus, the district court properly construed Phelps's action as one seeking injunctive relief pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). Federal inmates seeking injunctive relief for violations of their constitutional rights by federal officials must first exhaust the Federal Bureau of Prison's administrative grievance process set forth in 28 C.F.R. Part 542 (1993), unless administrative exhaustion would be futile. See Lyons v. United States Marshals, 840 F.2d 202 (3d Cir. 1988); Veteto v. Miller, 794 F.2d 98 (3d Cir. 1986). Because it was apparent from the face of Phelps's Complaint that he had not exhausted his administrative remedies, we affirm the district court's dismissal; however, we modify the judgment to state that the dismissal is without prejudice to allow for the possibility of refiling this action, if and when the administrative process is completed. 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