Rorie v. Freeman ( 1997 )


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  • UNPUBLISHED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    Affirmed in part and vacated and remanded in part by unpublished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    Unpublished opinions are not binding precedent in this circuit.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