Affirmed as modified by unpublished PER CURIAM opinion.

Unpublished opinions are not binding precedent in this circuit.

lStai’r Dalton appeals the district court’s order accepting the recommendation of the magistrate judge and denying relief on his 42 U.S.C. § 1983 (2006) complaint. We have reviewed the record and find no reversible error. Accordingly, we modify the dismissal of the action to be *237without prejudice and affirm for the reasons stated by the district court. Dalton v. W. VA. Div. of Corr., No. 2:08-cv-01153, 2009 WL 2707407 (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.