Troy R. Sutton v. Robert J. McCabe Correctional Medical Service Norfolk Community Hospital Health Care Services

59 F.3d 167, 1995 U.S. App. LEXIS 23474, 1995 WL 370446

• Court: Court of Appeals for the Fourth Circuit
• Decided: June 22, 1995
• Docket: 95-6113
• Status: Published

Opinion

59 F.3d 167
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.

Troy R. SUTTON, Plaintiff-Appellant,
v.
Robert J. MCCABE; Correctional Medical Service; Norfolk
Community Hospital; Health Care Services,
Defendants-Appellees.

No. 95-6113.

United States Court of Appeals, Fourth Circuit.

Submitted: May 31, 1995.
Decided: June 22, 1995.

Troy R. Sutton, Appellant Pro Se.

E.D.Va.

VACATED AND REMANDED.

Before WIDENER and HAMILTON, Circuit Judges, and BUTZNER, Senior Circuit Judge.

OPINION

PER CURIAM:

Virginia inmate Troy Sutton appeals the dismissal, without prejudice, of his 42 U.S.C. Sec. 1983 (1988) complaint alleging inadequate medical care for a separated shoulder. The district court dismissed the case because Sutton failed to respond "to interrogatories inquiring as to the places and dates of his incarceration over the six months preceding the submission of his complaint." The court needed the information to process Sutton's application to proceed in forma pauperis. Because the record reflects that the court in fact did not direct Sutton to respond to any interrogatories, we vacate and remand for further proceedings.

On September 27, 1994, the district court issued an order stating in pertinent part:

Normally, the court would direct plaintiff to respond to certain interrogatories concerning where he was incarcerated for the six months preceding the submission of his complaint. An examination of the file makes clear, however, that plaintiff has been incarcerated at Norfolk City Jail for the period in question. Accordingly, the court will continue to process plaintiff's motion to proceed in forma pauperis and will assess a filing fee, if warranted, by subsequent order.

In accordance with this order, the court did not submit interrogatories to Sutton concerning where he had been incarcerated. Under these circumstances, it was an abuse of discretion for the court to dismiss the action for failure to respond to interrogatories which did not exist.

We accordingly vacate the decision of the district court. The case is remanded for appropriate processing of Sutton's in forma pauperis application and complaint. We dispense with oral argument because our review of the record and the other materials before us discloses that it would not aid the decisional process. The motion for appointment of counsel is denied.