                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 03-6318



RONALD LEE ROBERTSON,

                                            Plaintiff - Appellant,

          versus


SCOTT NIVENS, Probation & Parole #13; A. M.
COLLINS,     Superintendent,    Appalachian
Correctional Center; RONALD WUERGLER, Major;
KIM TYREE, Nurse,

                                           Defendants - Appellees.



Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. Jackson L. Kiser, Senior District
Judge. (CA-02-778-7)


Submitted:   July 16, 2003            Decided:   September 16, 2003


Before NIEMEYER, MICHAEL, and KING, Circuit Judges.


Affirmed as modified by unpublished per curiam opinion.


Ronald Lee Robertson, Appellant Pro Se. Richard Carson Vorhis,
OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for
Appellees.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

     Ronald Lee Robertson appeals the district court’s judgment

granting summary judgment to the Appellees Nivens, Collins and

Wuergler and dismissing the complaint as to Appellee Tyree.              We

have reviewed the record and find no reversible error relating to

the grant of summary judgment. Accordingly, we affirm the grant of

summary judgment for the reasons stated by the district court.

Robertson v. Nivens, No. CA-02-778-7 (W.D. Va. Feb. 6, 2003).            As

for the dismissal of the action for failing to properly serve

process on Appellee Tyree, we have reviewed the record and find no

reversible error.     We note, however, that dismissal of the action

should have been without prejudice.        See Mendez v. Elliot, 45 F.3d

75, 78 (4th Cir. 1995).           Accordingly, we affirm the court’s

dismissal    of   Tyree   as   modified   to   reflect   dismissal   without

prejudice.    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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