James Worley, Plaintiff-appellant, v. Jack Lewis, Commissioner of Corrections; Rick Barker,jailor, Pulaski County Detention Center; Medical Departmentof Roederer Correctional Complex; Eastern Kentuckycorrectional Complex, Medical Department; Dr. Shaw,defendants-appellees, 985 F.2d 562 (6th Cir. 1993)

ORDER

This pro se Kentucky prisoner appeals a district court judgment dismissing his civil rights action filed under 42 U.S.C. § 1983. The case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

Seeking monetary relief, Worley sued the Commissioner of the Kentucky Corrections Cabinet (Lewis), the jailer at the Pulaski County Detention Center (Barker), a doctor at the Eastern Kentucky Correctional Complex (Shaw) and the medical departments (no specific individual was named) at two state prisons. He alleged that the defendants violated his Eighth Amendment rights because they were deliberately indifferent to his serious medical needs when they refused to treat his hernia surgically.

A magistrate judge recommended dismissing the case pursuant to 28 U.S.C. § 1915(d). After de novo review in light of Worley's objections, the district court accepted the magistrate judge's recommendation and dismissed the case.

On appeal, Worley continues to argue the merits of his case. He has filed a motion to proceed as a pauper, although he is already proceeding as a pauper. The appellees have notified the court that they will not be filing a brief.

Upon review, we conclude that the district court abused its discretion in dismissing Worley's complaint pursuant to 28 U.S.C. § 1915(d). See Denton v. Hernandez, 112 S. Ct. 1728, 1734 (1992). Plaintiff's complaint arguably states a basis in law or fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989).

Accordingly, we deny Worley's motion to proceed as a pauper as moot and vacate the district court's judgment and remand for further proceedings. Rule 9(b) (3), Rules of the Sixth Circuit.