Imam 'shahid Muhammad, Plaintiff-appellant, v. Dr. Hill; Dr. Muro, Defendants-appellees, 951 F.2d 1259 (10th Cir. 1991)

ORDER AND JUDGMENT

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir.R. 34.1.9. The cause is therefore ordered submitted without oral argument.

Plaintiff Iman 'Shahid Muhammad filed a Bivens action claiming that the defendant doctors serving the federal prison at Leavenworth, Kansas violated the Eighth Amendment to the Constitution by denying him proper medical testing. He believes that the tests would establish that he was previously forcibly injected with a chemical which is destroying his body.

The district court dismissed Mr. Muhammad's claim as frivolous under 28 U.S.C. § 1915(d) (1988). The district court found that "the complaint lacks an arguable factual or legal basis for imposing liability." Rec., doc. 4. We reverse. Assuming defendant's unrefuted allegations to be true, a finding of frivolousness is inappropriate, and a dismissal for failure to state a claim premature. See Neitzke v. Williams, 490 U.S. 319 (1989).

Accordingly, we grant plaintiff's motion for in forma pauperis status and deny his motion for appointment of counsel. We REVERSE and REMAND for proceedings not inconsistent with this opinion.