UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 96-6051

LEONARD A. SMITH, Plaintiff - Appellant, versus DONALD MYERS, Defendant - Appellee.

Appeal from the United States District Court for the District of South Carolina, at Greenville. Matthew J. Perry, Jr., Senior Dis- trict Judge. (CA-95-3129-6-OAK)

Submitted: April 15, 1996 Decided: May 2, 1996

Before ERVIN and MOTZ, Circuit Judges, and CHAPMAN, Senior Circuit Judge.

Affirmed as modified by unpublished per curiam opinion.

Leonard A. Smith, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).

PER CURIAM: Appellant appeals from the district court's order denying re- lief on his complaint styled pursuant to 42 U.S.C. § 1983 (1988).

We have reviewed the record and the district court's opinion accepting the magistrate judge's recommendation and find no rever- sible error. To the extent that the district court relied on abso- lute immunity to dismiss the action, we note that because Appellant did not seek monetary damages, absolute immunity does not apply.

See Pulliam v. Allen, 466 U.S. 522, 541-42 (1984); Timmerman v. Brown, 528 F.2d 811, 812 (4th Cir. 1975). However, because the district court correctly determined that this action would more properly be brought pursuant to 28 U.S.C. § 2241 (1988), we affirm the dismissal of the action with the modification that the dis- missal be without prejudice. See 28 U.S.C. § 2106 (1988). We dis- pense 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