James B. Mitchell, Plaintiff--appellant, v. United States Marshals Service, Defendant--appellee, 74 F.3d 1232 (4th Cir. 1996)

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U.S. Court of Appeals for the Fourth Circuit - 74 F.3d 1232 (4th Cir. 1996) Submitted Jan. 11, 1996. Decided Jan. 23, 1996

James B. Mitchell, Appellant Pro Se.

Lynn M. Powalski, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.

Before RUSSELL, HALL, and WILKINSON, Circuit Judges.


Affirmed as modified by unpublished per curiam opinion.

PER CURIAM

Appellant appeals from the district court's order granting summary judgment to Appellee. We have reviewed the record and find that the district court did not err in concluding that Appellant's complaint failed to state a cognizable claim. However, because Appellant failed to allege misconduct for which the United States has waived its sovereign immunity, the district court should have dismissed Appellant's complaint under Fed. R. Civ. P. 12(b) (1), for lack of subject matter jurisdiction. See Williams v. United States, 50 F.3d 299, 301, 309-11 (4th Cir. 1995). Accordingly, we affirm the district court's order as modified to reflect a dismissal for lack of jurisdiction under Rule 12(b) (1). 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