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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT MARTY LEE RORIE, Plaintiff-Appellant, and CARL WILLIAMS, Plaintiff, No. 96-7548 v. FRANKLIN FREEMAN, Secretary of the Department of Corrections; CAPTAIN STEEN; CHAPLAIN SMITH, Defendants-Appellees. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Graham C. Mullen, District Judge. (CA-96-363-3-MU) Submitted: May 30, 1997 Decided: June 19, 1997 Before HALL and WILLIAMS, Circuit Judges, and PHILLIPS, Senior Circuit Judge. _________________________________________________________________ Affirmed in part and vacated and remanded in part by unpublished per curiam opinion. _________________________________________________________________ COUNSEL Marty Lee Rorie, Appellant Pro Se. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). _________________________________________________________________ OPINION PER CURIAM: Appellant appeals from the district court's order dismissing his
42 U.S.C. § 1983(1994) complaint alleging deliberate indifference to a known risk of harm to Appellant by another inmate. In his complaint, Appellant alleges that prison officials Captain Steen and Chaplain Smith warned him about a specific threat to him by a certain inmate, and then failed to intervene when the inmate was reassigned to Appel- lant's housing unit within the week. Appellant and the inmate were involved in a confrontation shortly thereafter. Finding that Appellant had failed to allege a constitutional violation, the district court dis- missed the complaint as frivolous pursuant to 28 U.S.C.A. § 1915A (West Supp. 1997). We have held that deliberate or callous indifference on the part of prison officials to specific known risks of harm states an Eighth Amendment claim. Pressly v. Hutto,
816 F.2d 977, 979 (4th Cir. 1987); see also Farmer v. Brennan,
511 U.S. 825, 833 (1994). Con- trary to the finding of the district court, Appellant's complaint clearly alleges the deliberate indifference of Steen and Smith to a known risk of attack by a specific inmate. It cannot be said, therefore, that Appel- lant fails to allege a constitutional violation or that his allegations are simply conclusory. Accordingly, we find that Appellant's complaint against Steen and Smith is not factually or legally frivolous on its face. We therefore vacate the dismissal order and remand the matter for further proceedings as to these Defendants. We find, however, that the claim against Secretary Franklin Free- man was properly dismissed because there is nothing in the record to suggest that Freeman knew of a pervasive risk of harm to Appellant and failed to address the problem. Moore v. Winebrenner,
927 F.2d 1312, 1315 (4th Cir. 1991). We deny Appellant's motions for appointment of counsel and for an injunction to permit correspon- 2 dence with another inmate. We dispense with oral argument because the facts and legal contentions are adequately presented in the materi- als before the court and argument would not aid the decisional pro- cess. AFFIRMED IN PART; VACATED AND REMANDED IN PART 3
Document Info
Docket Number: 96-7548
Filed Date: 6/19/1997
Precedential Status: Non-Precedential
Modified Date: 4/18/2021