Linwood Hodges, Plaintiff Appellant, v. Penny Buchanan, Defendant Appellee, 39 F.3d 1176 (4th Cir. 1994)

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US Court of Appeals for the Fourth Circuit - 39 F.3d 1176 (4th Cir. 1994)

Submitted Sept. 26, 1994. Decided Oct. 25, 1994


Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Terrence W. Boyle, District Judge. (CA-94-103)

Linwood Hodges, appellant pro se.

E.D.N.C.

AFFIRMED.

Before ERVIN, Chief Judge, and WILKINSON and HAMILTON, Circuit Judges.

PER CURIAM:


Appellant appeals from the district court's order dismissing his action as frivolous under 28 U.S.C. § 1915(d) (1988). Appellant alleged that Defendant knew that he suffered from cluster headaches, yet she refused him his prescribed medication for seven days. To state a claim actionable under 42 U.S.C. § 1983 (1988), Appellant must allege that Defendant was deliberately indifferent to a serious medical need. Estelle v. Gamble, 429 U.S. 97, 104 (1976). Because Appellant may be able to particularize his complaint to state a non-frivolous claim, see Coleman v. Peyton, 340 F.2d 603, 604 (4th Cir. 1965), we modify the district court's order to reflect that the dismissal is without prejudice, and affirm that disposition. 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 AS MODIFIED