UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 09-7692

1STARR DALTON,

Plaintiff – Appellant,

v.

WEST VIRGINIA DIVISION OF CORRECTIONS; DAVID BALLARD, Warden; JIM RUBENSTEIN; SAMUEL KEENAN, Corporal; DONNA BRAENOVICH, Corporal; DARREN KOZART, Correctional Officer II; JARED ALSOP, Correctional Officer II; DEREK MCKINNEY, Lieutenant; JASON CLAUDELL, Captain; BRIAN GREENWOOD,

Defendants – Appellees.

Appeal from the United States District Court for the Southern District of West Virginia, at Charleston. Joseph R. Goodwin, Chief District Judge. (2:08-cv-01151)

Submitted: January 19, 2010 Decided: January 27, 2010

Before NIEMEYER, KING, and DAVIS, Circuit Judges.

Affirmed as modified by unpublished per curiam opinion.

1Starr Dalton, Appellant Pro Se. Christopher James Sears, SHUMAN, MCCUSKEY & SLICER, PLLC, Charleston, West Virginia, for Appellees.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

1Starr Dalton appeals the district court’s order

accepting the recommendation of the magistrate judge and

dismissing his

(2006) complaint for failure to

exhaust administrative remedies. We have reviewed the record

and find no reversible error. Accordingly, we modify the

dismissal of the action to be without prejudice and affirm as

modified for the reasons stated by the district court.

Dalton v. W. Va. Div. of Corr., No. 2:08-cv-01151 (S.D.W. Va.

Aug. 25, 2009). 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

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