Unpublished Dispositionfrederick Moore, Plaintiff-appellant, v. Donald Boatwright, M.d., Frank Thomas, M.d., Herb Murphy,aawt., Amos Foster, Chaplin, C.o. Watts, Lt.,defendants-appellees, 911 F.2d 733 (6th Cir. 1990)

ORDER

Frederick Moore, a pro se Tennessee prisoner, appeals the district court's order dismissing his civil rights 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).

Seeking damages and declaratory relief, Moore sued several prison officials employed at the Southeastern Tennessee State Regional Correctional Facility in their individual and official capacity. Moore alleged that the defendants failed to provide him with adequate medical care for his leg in violation of the eighth amendment. He also raised pendent state claims of medical malpractice and professional negligence.

After review, the district court dismissed the case as frivolous pursuant to 28 U.S.C. § 1915(d). Moore filed a timely appeal, in which he requests the appointment of counsel.

Upon review, we conclude that Moore's suit is not frivolous under 28 U.S.C. § 1915(d). His complaint may be dismissed as frivolous under Sec. 1915(d) only if it lacks an arguable basis in law or fact. Neitzke v. Williams, 109 S. Ct. 1827, 1831 (1989). We believe that Moore has an arguable basis for the claim that his Eighth Amendment rights were violated.

Accordingly, we vacate the district court's judgment and remand the case for further proceedings. Rule 9(b) (6), Rules of the Sixth Circuit. We also deny Moore's request for the appointment of counsel without prejudice to his right to renew the request in the district court.