873 F. 2d 1439 - McFadden v. C Smith

James McFadden, a federal inmate, appeals the dismissal of his second suit alleging that his federally appointed counsel committed malpractice during the prosecution that resulted in McFadden's conviction for aiding and abetting the distribution of heroin. Our review of the record and the district court's opinion reveals that this appeal is without merit. Accordingly, we affirm on the reasoning of the district court. McFadden v. Smith, C/A No. 88-70-C-C-M (W.D.N.C. Sept. 19, 1988). However, we note that the district court's dismissal acts as an ajudication on the merits only insofar as McFadden's complaint can be read to present a claim pursuant to 42 U.S.C. Sec. 1983 or Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), and it should not affect McFadden's pursuit of any state tort or contract claims he may have, should he choose to pursue these remedies in state court. It also appears that the district court incorrectly instructed McFadden to exhaust his state remedies before filing an action for monetary damages. As McFadden is a federal offender, no exhaustion requirements exist.*

We dispense with oral argument because the dispositive issues recently have been decided authoritatively.

AFFIRMED.