Laurs Warner v. Jon P. Galley, Warden J. Joseph Curran, Jr., Attorney General , 9 F.3d 1545 ( 1993 )

9 F.3d 1545

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.
Laurs WARNER, Plaintiff-Appellant,
v.
Jon P. GALLEY, Warden; J. Joseph Curran, Jr., Attorney
General, Defendants-Appellees.

No. 93-6748.

United States Court of Appeals,
Fourth Circuit.

Submitted: October 25, 1993.
Decided: November 16, 1993.

Appeal from the United States District Court for the District of Maryland, at Baltimore.

Laurs Warner, Appellant Pro Se.

D.Md.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED.

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

PER CURIAM:

OPINION

1

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.

2

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).

3

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.

4

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.

5

AFFIRMED IN PART, VACATED IN PART, AND REMANDED