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881 F2d 1075 Carlton v. Page

881 F.2d 1075

Edward Nathaniel CARLTON, Plaintiff-Appellant,
v.
Ralph PAGE, Sgt.; Ozell Nelson, Vanessa Lowder, also known
as Louder; John Doe, Defendants.

No. 89-1095.

United States Court of Appeals, Sixth Circuit.

Aug. 8, 1989.

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.

1

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

ORDER

2

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).

3

Plaintiff brought a civil rights action under 42 U.S.C. Sec. 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. Sec. 1915(d). The instant appeal followed.

4

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.

5

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