Unpublished Dispositionkelly Gene Banner, Plaintiff-appellant, v. Lee Miller, Associate Warden Carter County Work Camp,defendant-appellee, 826 F.2d 1062 (6th Cir. 1987)

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US Court of Appeals for the Sixth Circuit - 826 F.2d 1062 (6th Cir. 1987)

Aug. 18, 1987


Before LIVELY, Chief Judge, and MILBURN and RYAN, Circuit Judges.


ORDER

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 agrees unanimously that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure.

Plaintiff, an inmate of the Morgan County Regional Correctional Facility in Wartburg, Tennessee, filed his complaint for injunctive and monetary relief pursuant to 42 U.S.C. § 1983 alleging a violation of his due process rights. Plaintiff claimed that he was transferred back to the Morgan County Facility from the Carter County Work Camp in retaliation for exercising his right of access to the courts. Prior to service of plaintiff's complaint on the defendant, the district court sua sponte dismissed plaintiff's action adopting the magistrate's report and recommendation that dismissal was proper because plaintiff failed to state a claim upon which relief could be granted.

Construing plaintiff's pro se complaint liberally and accepting plaintiff's factual allegations as true, Conley v. Gibson 355 U.S. 41, 45-46 (1957); Haines v. Kerner, 404 U.S. 519, 520 (1972), we vacate the order of the district court and remand for further consideration.

Plaintiff has alleged sufficient facts that he was transferred from one prison to another for retaliatory reasons to prevent a sua sponte dismissal of his complaint for failure to state a claim. Plaintiff's allegations do state a cause of action under 42 U.S.C. § 1983. McDonald v. Hall, 610 F.2d 16, 18 (1st Cir. 1979); Garland v. Polley, 594 F.2d 1220, 1222 (8th Cir. 1979). Therefore, the district court's dismissal was improper and we hereby vacate the court's order and remand for further proceedings consistent with this opinion. Rule 9(b) (6), Rules of the Sixth Circuit.