UNPUBLISHED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Affirmed as modified by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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