Unpublished Dispositiondavid Lee Carter, Plaintiff-appellant, v. Otie R. Jones, Warden; Wayne Casteel; Susan Hiatt,defendants-appellees, 880 F.2d 414 (6th Cir. 1989)

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US Court of Appeals for the Sixth Circuit - 880 F.2d 414 (6th Cir. 1989) July 31, 1989

Before KENNEDY and KRUPANSKY, Circuit Judges, and WENDELL A. MILES, Senior District Judge.* 

ORDER

David Lee Carter, a pro se Tennessee state prisoner, appeals from the dismissal of his civil rights action filed under 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).

Carter sued the warden, associate warden of treatment, and health administrator of Brushy Mountain State Prison for monetary damages and other relief, alleging that they had conspired with his former custodians to transfer him in order to defeat previous civil rights suits he had filed against the former custodians. He also alleged that the fire protection system at Brushy Mountain was inadequate, and that he was not receiving proper psychiatric treatment. The district court dismissed the case as frivolous under 28 U.S.C. § 1915(d), concluding that plaintiff had failed to state a claim under Sec. 1983.

Upon consideration, we conclude that the district court's decision should be affirmed only as to the claimed inadequacy of the fire protection system, which lacks any arguable basis in fact or law. See Neitzke v. Williams, 109 S. Ct. 1827, 1831 (1989). However, as we cannot conclude that the remainder of the claims meet this standard of frivolity, the judgment dismissing the claims regarding the transfer and psychiatric care of Carter must be vacated, and remanded for further consideration.

Accordingly, the district court's judgment is hereby affirmed in part, and vacated and remanded in part. Rules 9(b) (5) and (6), Rules of the Sixth Circuit.

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The Honorable Wendell A. Miles, Senior U.S. District Judge for the Western District of Michigan, sitting by designation