Daniel Whisenant, and The Inmates of The Cabell County Jail v. Jerry Hutchinson, Cabell County Jail Administrator, 923 F.2d 850, 4th Cir. (1991)
Daniel Whisenant, and The Inmates of The Cabell County Jail v. Jerry Hutchinson, Cabell County Jail Administrator, 923 F.2d 850, 4th Cir. (1991)
Daniel Whisenant, and The Inmates of The Cabell County Jail v. Jerry Hutchinson, Cabell County Jail Administrator, 923 F.2d 850, 4th Cir. (1991)
2d 850
Unpublished Disposition
Appeal from the United States District Court for the Southern District of
West Virginia, at Huntington. Charles H. Haden, II, Chief District Judge.
(CA-90-683)
Daniel Whisenant, appellant pro se.
S.D.W.Va.
AFFIRMED IN PART, VACATED IN PART AND REMANDED.
Before PHILLIPS, CHAPMAN and WILKINS, Circuit Judges.
PER CURIAM:
Daniel Whisenant, a West Virginia inmate, brought this 42 U.S.C. Sec. 1983
action on his own behalf, and on behalf of the inmates of the Cabell County
Jail, alleging various constitutional violations arising from jail conditions and
practices. The district court declined to certify a class action and dismissed the
case, sua sponte, under 28 U.S.C. Sec. 1915(d) as frivolous. Whisenant
appealed. We affirm in part, vacate in part, and remand.
2
The district court's decision not to certify this case as a class action was proper.
Oxendine v. Williams, 509 F.2d 1405, 1406 (4th Cir.1975).
Claims which are based upon "indisputably meritless legal theories" or "clearly
baseless" factual contentions may properly be dismissed as "frivolous" under
Sec. 1915(d). Neitzke v. Williams, 57 U.S.L.W. 4493, 4495 (U.S.1989).
However, where a plaintiff proceeds under at least an arguable legal theory, and
his factual allegations are not entirely fanciful, dismissal under Sec. 1915(d) is
inappropriate. Id.
Applying this standard to the present case demonstrates that the district court's
dismissal of Whisenant's claims regarding visitation facilities (claim 2),
indifference to medical needs (claim 4), the law library and legal advocate
(claim 5), the inmate classification system (claim 6), telephone access (claim
7), and food handling (claim 8) was proper. These claims were either based
upon meritless legal theories or were unsupported by even the minimal factual
allegations required by Sec. 1915(d). Accordingly, the district court's dismissal
of these claims is affirmed.
Upon remand the district court should determine whether the regulations create
a liberty interest. If they do not create a liberty interest then dismissal of this
claim may well be proper. If the regulations do create such an interest further
investigation into the claim will be merited to determine whether the
requirements of Hewitt were complied with. This claim was improperly
dismissed.
10
Should it become apparent upon remand that the present defendant is not the
proper one, or that others should be joined, the plaintiff should be informed that
an amended complaint is necessary. See Gordon v. Leeke, 574 F.2d 1147 (4th
Cir.), cert. denied, 439 U.S. 970 (1978)