877 F2d 59 Ervin v. Sheriff's Department R
877 F.2d 59
Benjamin ERVIN, Jr., Plaintiff-Appellant,
SHERIFF'S DEPARTMENT, Suffolk City Jail, Medical Department,
Suffolk City Jail, Irving R. Baines, George
Hendriks, Robert Buckler, Edwin
Wentworth, Nurse, Defendants-Appellees.
United States Court of Appeals, Fourth Circuit.
Submitted April 20, 1989.
Decided June 5, 1989.
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.
Benjamin Ervin, Jr., appellant pro se.
Becky A. Powhatan, Willcox & Savage, PC, for appellees.
Before DONALD RUSSELL and PHILLIPS, Circuit Judges, and BUTZNER, Senior Circuit Judge.
Benjamin Ervin, Jr., appeals from the district court's order denying relief under 42 U.S.C. Sec. 1983. Our review of the record and the district court's opinion discloses that this appeal is without merit. Accordingly, we affirm on the reasoning of the district court. Ervin v. Sheriff's Department, C/A No. 88-68-AM (E.D.Va. Jan. 30, 1989).* We deny Ervin's motion to compel discovery. 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 decision process.
Although the district court purported to grant the defendants' motion to dismiss, it relied upon affidavits submitted by the defendants; therefore, its order is actually a grant of summary judgment in favor of the defendants. Because the court gave Ervin notice of his ability to file counter affidavits and other materials to preserve his claim, summary judgment could properly be granted. Roseboro v. Garrison, 528 F.2d 309 (4th Cir.1975)