James D. Haburn, Sr., Plaintiff-appellant, v. Jennifer Vicks; Joel Brewer, Assistant District Attorney;sharon Bettenton, Police Officer, Roxboro; Bruce Ragan,police Detective, Roxboro; Donnie Perkins, Policedetective, Roxboro; John Doe; Jane Doe; Earnest Sanchez,jr.; Danny Higgins; Kevin Heckart; Michael Harvell; Toddferrell, District Attorney, Pender County, Defendants--appellees, 60 F.3d 822 (4th Cir. 1995)

Appellant appeals from the district court's order denying relief on his 42 U.S.C. § 1983 (1988) complaint. We have reviewed the record and the district court's opinion accepting the magistrate judge's recommendation and find no reversible error. Accordingly, we affirm substantially on the reasoning of the district court. Haburn v. Vicks, No. CA-95-29-1 (M.D.N.C. Mar. 20, 1995). We agree that, with respect to Appellant's damages claim, the district court properly dismissed that claim. See Heck v. Humphrey, 62 U.S.L.W. 4594 (U.S.1994). Further, although the district court did not address Appellant's request for declaratory and injunctive relief, to the extent that this action is properly construed as a habeas corpus action, Appellant must demonstrate that he has exhausted state court remedies. See Preiser v. Rodriguez, 411 U.S. 475, 489 (1973); Hamlin v. Warren, 664 F.2d 29 (4th Cir. 1981), cert. denied, 455 U.S. 911 (1982). Because Appellant may refile his petition upon the exhaustion of state remedies, we modify the judgment to be a dismissal without prejudice. See 28 U.S.C. § 2106 (1988). 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