Unpublished Dispositionkenneth Trotter, Plaintiff-appellant, v. Helen Chambers; John Faught, Col.; Joel Hutchinson, Col.;lonzo Duncan, Defendants-appellees, 856 F.2d 196 (6th Cir. 1988)

ORDER

This pro se Tennessee prisoner requests the appointment of counsel in his appeal from the district court's judgment dismissing his civil rights complaint as frivolous. The appeal has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the record and briefs, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

The complaint alleged that guards at the Tennessee penitentiary in which the plaintiff is incarcerated used excessive physical force in restraining him during an altercation. A magistrate conducted a preliminary evidentiary hearing to assist the court in determining whether the claim was frivolous. Based on his resolution of a conflict in the testimony presented at the hearing, the magistrate recommended that the district court find the action frivolous and dismiss it under 28 U.S.C. § 1915(d). The court did so.

On the record that was before the district court, we are not satisfied that the court could determine that the action was frivolous without placing undue reliance on the magistrate's subjective assessment of the credibility of the witnesses. See Cay v. Estelle, 789 F.2d 318, 326-27 (5th Cir. 1986).

Accordingly, the judgment is REVERSED and the case is REMANDED for proceedings not inconsistent with this opinion. Rule 9(b) (6), Rules of the Sixth Circuit.