                              UNPUBLISHED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Affirmed as modified by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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 42 U.S.C. § 1983 (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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