Andrew Highsmith, Plaintiff-appellant, v. Lt. Wilson, D.a. Ragland, S.l. Johnson, Sargeant, A.franzekas, Defendants-appellees, 883 F.2d 69 (4th Cir. 1989)

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US Court of Appeals for the Fourth Circuit - 883 F.2d 69 (4th Cir. 1989) Submitted May 31, 1989. Decided Aug. 14, 1989

Andrew Highsmith, appellant pro se.

Before PHILLIPS, MURNAGHAN, and SPROUSE, Circuit Judges.


Andrew Highsmith appeals the district court's order dismissing this 42 U.S.C. § 1983 action for failure to demonstrate administrative exhaustion. Acting pursuant to 42 U.S.C. § 1997e, the district court ordered appellant to exhaust administrative remedies and to advise the court within 100 days of the result of the administrative proceedings. It warned appellant that failure to advise the court regarding exhaustion would result in dismissal of the action. The district court dismissed the case without prejudice upon expiration of the 100 day period, appellant not having complied with its order.

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 comply with its order was not abuse of discretion; nor was its denial of Highsmith's motion to reconsider an abuse of discretion. We therefore affirm the judgment below. Because the district court's dismissal was without prejudice, appellant is free to refile his action. We dispense with oral argument because the dispositive issues have recently been decided authoritatively.