Jay McNABB; McJast Incorporated, d/b/a American Carolina Stamping; Steve McNabb; Janet Sue McNabb, Plaintiffs-Appellants, v. State of NORTH CAROLINA; North Carolina Department of Environment, Health and Natural Resources, Division of Waste Management; Spring Allen; Douglas Holyfield; Janet Reno, United States Attorney General; United States of America; The United States Environmental Protection Agency; Tyler Amon; Ivan Viking; Arthur Jerome Poteet; Damon Silvas; Loreen Silvas; John Doe-1; John Doe-2; John Doe-3, Defendants-Appellees, 33 F. App'x 91

OPINION PER CURIAM. The plaintiffs in this case are Steve and Janet McNabb; their son, Jay McNabb; and McJast Inc. (McJast), a corporation owned by Janet McNabb. McJast, which employs several members of the McNabb family (including the three individual plaintiffs), makes metal parts at its facility in Transylvania County, North Carolina. In 1998 officials of the North Carolina Department of Environment and Natural Resources (NCDENR) attempted to investigate anonymous complaints of unlawful hazardous waste disposal at the McJast facility. The matter was eventually referred to the U.S.

Environmental Protection Agency’s Criminal Investigation Division (EPA-CID). On April 15, 1999, a number of federal agents, armed with a search warrant, raided the McJast premises. The raid prompted the plaintiffs to sue the State of North Carolina, NCDENR, two NCDENR employees, the United States, the EPA, the U.S. Attorney General, two agents of the EPA-CID, and several private parties, asserting claims under 42 U.S.C. §§ 1983 and 1985, the Federal Tort Claims Act (FTCA), Bivens, the Fourth Amendment, the Sixth Amendment, the Fourteenth Amendment, and the North Carolina Constitution.

The defendants filed motions to dismiss and for

summary judgment, and the matter was referred to the magistrate judge. In a thorough Amended Memorandum and Recommendation, the magistrate judge recommended that all claims be dismissed. See McNabb v. North Carolina, No. I:00cv203-T (W.D.N.C. Apr. 11, 2001). The district court generally adopted the magistrate judge’s recommendations and concluded that all claims should be disposed of by dismissal or, in the alternative, by the award of

summary judgment to the defendants. With one exception noted below, we affirm on the reasoning of the district court. See McNabb v. North Carolina, 156 F.Supp.2d 546 (W.D.N.C. 2001). The magistrate judge recommended that the plaintiffs’ FTCA claim be dismissed for lack of subject matter jurisdiction because the plaintiffs did not first present this claim to the appropriate federal agency. See 28 U.S.C. § 2675(a). The district court’s ultimate dismissal of the FTCA claim has the effect of a dismissal with prejudice.

Because the decision to dismiss the FTCA claim was not a decision on the merits, the claim should have been dismissed without prejudice. Accordingly, the judgment dismissing the FTCA claim is vacated so that it can be reentered on remand as a dismissal without prejudice. AFFIRMED IN PART, VACATED IN PART, AND REMANDED.