                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 09-7693


1STARR DALTON,

                  Plaintiff – Appellant,

             v.

WEST VIRGINIA DIVISION OF CORRECTIONS; DAVID BALLARD,
Warden; JIM RUBENSTEIN; BRIAN GREENWOOD; ADAM CAYTON,
Correctional Officer II; NATE KENDRICK, Corporal; CURTIS
DIXON, Sergeant,

                  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-01153)


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Affirmed as modified by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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 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 without prejudice

and     affirm    for    the       reasons    stated     by   the    district    court.

Dalton v. W. Va. Div. of Corr., No. 2:08-cv-01153 (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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