Laurs Warner, Plaintiff-appellant, v. Jon P. Galley, Warden; J. Joseph Curran, Jr., Attorneygeneral, Defendants-appellees, 9 F.3d 1545 (4th Cir. 1993)

OPINION

Laurs Warner appeals from the district court order dismissing his 42 U.S.C. § 1983 (1988) complaint. The district court found the complaint frivolous and dismissed it pursuant to 28 U.S.C. § 1915(d) (1988). We affirm in part, vacate in part, and remand for further proceedings.

Warner filed this action alleging that prison officials (1) prevented him from filing "street charges" against a prisoner who attacked him; (2) failed to protect him from the prisoner's attack; and (3) improperly handled the entire "matter." We affirm the dismissal of claims (1) and (3) on the reasoning of the district court. Warner v. Galley, No. CA-92-1481-S (D. Md. June 18, 1993).

However, the district court failed to address claim (2) in the complaint. Warner's failure-to-protect allegation clearly states a nonfrivolous, constitutional claim. Pressly v. Hutto, 816 F.2d 977, 979 (4th Cir. 1987). Although Warner's statement of the claim is somewhat conclusory, the district court should have allowed further elucidation of the claim before dismissing it. Coleman v. Peyton, 340 F.2d 603, 604 (4th Cir. 1965). Thus, we vacate the order of dismissal and remand for further consideration of the protection-from-violence claim.

For these reasons, we affirm in part and vacate in part the district court order dismissing Warner's complaint. We remand the case for further proceedings not inconsistent with this opinion. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED