Unpublished Dispositiondennis Calloway, Larry Calloway, Plaintiffs-appellants, v. Eric Dahlberg, Beach, Corrections Officer, Defendants-appellees, 880 F.2d 1321 (6th Cir. 1989)

Before KRUPANSKY and RYAN, Circuit Judges, and HENRY R. WILHOIT, District Judge.^* 

ORDER

Larry Calloway and his brother Dennis Calloway appeal the order of the district court dismissing their cause of action filed pursuant to 42 U.S.C. § 1983. This case 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 the briefs, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

The Calloway brothers are prisoners in Ohio's Reformatory for Men. Seeking monetary damages, the brothers brought suit against the Warden and a Corrections Officer of that institution. They alleged that Larry Calloway was subjected to an unprovoked physical attack by defendant Beach. Specifically, plaintiffs alleged that defendant Beach began choking Larry Calloway as he was leaving the cafeteria. Plaintiffs alleged that defendant Beach addressed Larry Calloway using racial insults during the choking incident. In addition, plaintiff Larry Calloway alleged that defendant Beach pushed him and tried to trip him. Plaintiff Dennis Calloway claimed that he witnessed the alleged attack. The complaint does not set forth any allegations that plaintiff Dennis Calloway was subjected to any assault, battery or racial insults.

Pursuant to 28 U.S.C. § 1915(d), the district court reviewed plaintiff's complaint and found that the allegations failed to state a claim cognizable under 42 U.S.C. § 1983. Thus, the district court denied plaintiff's petition to proceed in forma pauperis and dismissed the complaint.

Upon review, we affirm in part and vacate and remand in part.

The plaintiffs concede in their reply brief that Dennis Calloway has no standing to bring suit and that he was properly dismissed as a plaintiff. The district court therefore properly dismissed the suit as it pertains to Dennis Calloway.

Subsequent to the district court's order herein, the United States Supreme Court rendered its opinion in Neitzke v. Williams, 109 S. Ct. 1827 (1989), clarifying that dismissal pursuant to Sec. 1915(d) is proper only if the legal theory or factual contentions lack any arguable basis. Therefore, unless there is "indisputably absent any factual or legal basis" for the wrong asserted in the complaint, responsive pleadings are required.

In this case, we conclude that plaintiff, Larry Calloway, has a legal basis to support his claim of assault afforded under the eighth and fourteenth constitutional amendments. See, e.g., Danese v. Asman, No. 87-2039, slip op. p. 7 (6th Cir. May 26, 1989); Roberts v. City of Troy, 773 F.2d 720, 722 (6th Cir. 1985).

Accordingly, we hereby affirm the dismissal of the suit as to Dennis Calloway, Rule 9(b) (5), Rules of the Sixth Circuit, and, vacate the judgment to the extent it dismissed the suit as to Larry Calloway and remand for further proceedings. Rule 9(b) (6), Rules of the Sixth Circuit.