Unpublished Dispositionedward Nathaniel Carlton, Plaintiff-appellant, v. Ralph Page, Sgt.; Ozell Nelson, Vanessa Lowder, Also Knownas Louder; John Doe, Defendants, 881 F.2d 1075 (6th Cir. 1989)

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US Court of Appeals for the Sixth Circuit - 881 F.2d 1075 (6th Cir. 1989) Aug. 8, 1989

Before KEITH and RALPH B. GUY, Jr., Circuit Judges, and THOMAS G. HULL, Chief District Judge.* 

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 briefs and record, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

Plaintiff brought a civil rights action under 42 U.S.C. § 1983 against several correctional officers of the State Prison of Southern Michigan in which he alleged that the defendants improperly permitted a violent prisoner to associate with, and later assault, plaintiff. The district court dismissed the complaint as frivolous under 28 U.S.C. § 1915(d). The instant appeal followed.

The district court dismissed the complaint on the authority of Malone v. Colyer, 710 F.2d 258, 260-61 (6th Cir. 1983). Subsequent to the district court's decision, the Supreme Court cast doubt upon the continued viability of the Malone "frivolous" standard in Neitzke v. Williams, 109 S. Ct. 1827 (1989). We therefore find that the instant case should be remanded for further proceedings in light of Nietzke.

Accordingly, the district court judgment is vacated and remanded for further consideration. Rule 9(b) (6), Rules of the Sixth Circuit.

 *

The Honorable Thomas G. Hull, Chief U.S. District Judge for the Eastern District of Tennessee, sitting by designation