1starr Dalton v. West Virginia Division of Corrections

UNPUBLISHED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Affirmed as modified by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

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2
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. 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. 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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