OpenJurist

811 F2d 1365 Owens v. Maschner Mj

811 F.2d 1365

Willie M. OWENS, Jr., Plaintiff-Appellant,
v.
Herb MASCHNER, Director Kansas State Penitentiary; Dan
Pettis, Captain Kansas State Penitentiary; M.J.
Ralls, Sr., Lieutenant Kansas State
Penitentiary, Defendants-Appellees.

No. 86-2162.

United States Court of Appeals,
Tenth Circuit.

Feb. 17, 1987.

Before BARRETT, SETH and LOGAN, Circuit Judges.

ORDER AND JUDGMENT

PER CURIAM.

1

After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.8(c) and 27.1.2. The cause is therefore ordered submitted without oral argument.

2

Plaintiff's motion for leave to proceed in forma pauperis is granted.

3

Without requiring a response from defendants, the district court dismissed plaintiff's 42 U.S.C. Sec. 1983 action for failure to state a claim. Plaintiff appeals.

4

Plaintiff worked in the inmate commissary. He alleged that he had been questioned about some items that had disappeared from the commissary, placed in solitary confinement, and accused of theft. He also stated that he was found guilty of theft at a disciplinary hearing twenty days after he was placed in solitary confinement. These allegations may have been sufficient to state a claim for which relief could be granted. See Hughes v. Rowe, 449 U.S. 5, 11-12, 101 S.Ct. 173, 177, 66 L.Ed.2d 163 (1980). Plaintiff further alleged that he had been threatened in violation of state law and the Eighth Amendment, that he had been denied access to the courts and his legal documents while he was in solitary confinement, and that he had been found guilty of theft based on coerced statements made by other inmates.

5

The record does not conclusively show that plaintiff is not entitled to relief. See Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). On remand, the district court should develop the record further and then make findings of fact and conclusions of law. See Martinez v. Aaron, 570 F.2d 317 (10th Cir.1978).

6

Accordingly, the judgment of the United States District Court for the District of Kansas is REVERSED and the case is REMANDED for further proceedings consistent with this order.

7

The mandate shall issue forthwith.