1Starr Dalton v. WV Division of Corrections

Filing 920100519

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 09-7688

1STARR DALTON, Plaintiff - Appellant, v. WEST VIRGINIA DIVISION OF CORRECTIONS; DAVID BALLARD, Warden; JIM RUBENSTEIN; JASON COLLINS, Captain (pty); MARGARET CLIFFORD, Lieutenant; JAMES MCCLOUD, Lieutenant; BRIAN MATTOX, Sergeant; CURTIS DIXON, Sergeant; CLINTON RYAN, Corporal; NATE KENDRICK, Corporal; MICHAEL ANGEL; GARRATTE ADAMS; 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-00335)

Submitted:

April 15, 2010

Decided:

May 19, 2010

Before TRAXLER, Chief Judge, and WILKINSON and NIEMEYER, Circuit Judges.

Affirmed as modified by unpublished per curiam opinion.

1Starr Dalton, Appellant Pro Se. David Edward Schumacher, Jason Alan Winnell, BAILEY & WYANT, PLLC, Charleston, West Virginia, for Appellees.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: 1Starr accepting the Dalton appeals of the the district court's judge order and

recommendation

magistrate

dismissing his 42 U.S.C. § 1983 (2006) complaint for failure to exhaust administrative remedies. The district court properly

required exhaustion of administrative remedies under 42 U.S.C. § 1997e(a) (2006). Because Dalton did not demonstrate to the

district court that he exhausted his administrative remedies or that such remedies were not available, the district court's

dismissal was not an abuse of discretion.

Accordingly we affirm

the district court's order, which is modified to reflect that the dismissal was without prejudice to Dalton's right to refile his complaint after he has exhausted his administrative

remedies. legal before

We dispense with oral argument because the facts and are and adequately argument presented not in aid the the materials decisional

contentions the court

would

process. AFFIRMED AS MODIFIED

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