1Starr Dalton v. WV Division of Corrections

Filing 920100519

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-7688 1STARR DALTON, Plaintiff - Appellant, v. WEST VIRGINIA DIVISION OF CORRECTIONS; DAVID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 Affirmed as modified by unpublished per curiam opinion. 1Starr Dalton, Appellant Pro Se.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 Unpublished opinions are not binding precedent in this circuit.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 2

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