Robert Either RUSSELL, Plaintiff-Appellant, v. GUILFORD COUNTY MUNICIPALITY; High Point Court House; Judge Henry Frye; James Green, Defendants-Appellees, 599 F. App'x 65

Affirmed as modified by unpublished PER CURIAM opinion. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Robert Either Russell appeals the district court’s order adopting the recommendation of the magistrate judge and dismissing his 42 U.S.C. § 1983 (2012) complaint as frivolous pursuant to 28 U.S.C. § 19154(b)(1) (2012). We have reviewed the record and find no reversible error. We conclude that Russell’s claim is not cognizable because his state conviction has not been overturned or called into question. See Heck v.

Humphrey, 512 U.S. 477, 486-87, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994); see also Wilkinson v. Dotson, 544 U.S. 74, 81-82, 125 S.Ct. 1242, 161 L.Ed.2d 253 (2005) (applying Heck to claims of equitable relief). Accordingly, we affirm substantially for the reasons stated by the district court, see Russell v. Guilford Cnty. Mun., No. 1:14-cv-00831-TDS-LPA (M.D.N.C. Oct. 31, 2014), but we modify the dismissal to be without prejudice because Russell may refile his claims should his conviction ever be invalidated by the appropriate court.

We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. AFFIRMED AS MODIFIED.