* After examining the briefs and appellate record, th is panel has determined

unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). Th e case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines o f law of the case, res judicata, and collateral estoppel. The court generally disfa vors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### AUG 4 2003 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JIMMY L. STROZIER,

Plaintiff-Appellant, No. 03-1126

v. (D. Colorado) JACK POTTER, Postmaster General, United States Postal Service,

Defendant-Appellee. (D.C. No. 02-N-379 (CBS))

ORDER AND JUDGMENT *

Before EBEL , HENRY , and HARTZ , Circuit Judges.
Pro se Plaintiff Jimmy L. Strozier appeals the dist rict court’s dismissal of his Title VII lawsuit for lack of subject matter ju risdiction. Concluding that Plaintiff failed to satisfy the jurisdictional prer equisite of exhausting his administrative remedies prior to filing suit, the d istrict court dismissed his case-2-

with prejudice. We agree that the district court l acked jurisdiction. But because a dismissal for lack of subject matter jurisdiction s hould be without prejudice, we must reverse and remand with instructions to dismis s Plaintiff’s case without prejudice. Plaintiff’s motion to proceed in forma pauperis is granted. Plaintiff is employed by the United States Postal S ervice (USPS). Defendant Jack Potter is Postmaster General of the United States. Plaintiff alleges that he suffered race and sex discriminatio n in the workplace, and that he was retaliated against for engaging in activity pro tected by Title VII. Plaintiff initially filed an informal complaint about the all eged discrimination with the USPS’s Equal Employment Opportunity (EEO) office an d began pursuing his complaints through the USPS’s internal process. On February 19, 2002, however, Plaintiff withdrew his EEO complaint. That same day he filed a motion in federal district court under 28 U.S.C. § 1915, seeking leav e to proceed in forma pauperis with a civil lawsuit. His pro se complaint was fil ed on February 26. Defendant moved under Federal Rule of Civil Procedu re 12(b)(1) to dismiss Plaintiff’s complaint for lack of subject m atter jurisdiction, arguing that Plaintiff had failed to satisfy the jurisdictional prerequisite of exhausting his administrative remedies prior to filing suit. See Khader v. Aspin , 1 F.3d 968, 970-71 (10th Cir. 1993). The matter was referred t o a magistrate judge, who recommended that Plaintiff’s case be dismissed base d on the jurisdictional defect-3-

noted by Defendant. The magistrate judge also reco mmended that Plaintiff be denied leave to amend his complaint. Plaintiff fil ed timely objections to the magistrate judge’s report and recommendation. The district court rejected those objections, adopting the report and recommendation and dismissing Plaintiff’s case with prejudice. On appeal Plaintiff does not challenge the districtcourt’s decision regarding his failure to exhaust administrative rem edies. He argues only that the court erred by dismissing his claim with prejudice, contending that dismissals for lack of subject matter jurisdiction should be withoutprejudice. We agree. A district court’s dismissal for lack of subject matter jurisdiction should be without prejudice. See Hernandez v. Conriv Realty Assoc. , 182 F.3d 121, 123-24 (2d Cir. 1999) (“Article III deprives federal court s of the power to dismiss a case with prejudice where federal subject matter jurisdi ction does not exist.”); In re Orthopedic “Bone Screw” Prod. Liab. Litig. , 132 F.3d 152, 155 (3d Cir. 1997) (“If a case, over which the court lacks subject mat ter jurisdiction, was originally filed in federal court, it must be dismissed. . . . The disposition of such a case will, however, be without prejudice.”); cf. Hollander v. Sandoz Pharm. Corp. , 289 F.3d 1193, 1216-17 (10th Cir. 2002) (dismissal for lack of personal jurisdiction should be without prejudice). Thus, we REVERSE the district court’s dismissal-4-

with prejudice and REMAND with instructions to dism iss Plaintiff’s case without prejudice.
ENTERED FOR THE COURT

Harris L Hartz Circuit Judge