UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

WILLIE C. CLEMONTS,

Plaintiff-Appellant,

v. No. 95-7769

SCOTT WEST,

Defendant-Appellee.

Appeal from the United States District Court

for the Eastern District of North Carolina, at Raleigh.

Terrence W. Boyle, District Judge.

(CA-95-879-5-CT-BO)

Submitted: December 29, 1995

Decided: May 29, 1996

Before WILKINSON, Chief Judge, and MURNAGHAN and

NIEMEYER, Circuit Judges.

_________________________________________________________________

Vacated and remanded by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Willie C. Clemonts, Appellant Pro Se.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________
OPINION

PER CURIAM:

Willie Clemonts appeals the district court's dismissal, pursuant to

28 U.S.C. § 1915(d) (1988), of his lawsuit alleging racial discrimination in job assignments at the Tillery Correctional Facility. Clemonts

alleged that the farm supervisor, Scott West, gave more favorable job

assignments to white inmates than to blacks. Further, Clemonts stated

that West gave pay raises to white inmates but not to blacks who merited raises. The district court dismissed the action, observing that Clemonts had not identified West's race and concluding that Clemonts

had not made a prima facie showing of a constitutional tort. We

vacate and remand.

Under § 1915(d), a district court may "permit suits that are arguably meritorious and . . . exclude suits that have no arguable basis in

law or in fact." Nasim v. Warden, 64 F.3d 951, 954 (4th Cir. 1995)

(in banc). We review § 1915(d) dismissals for an abuse of discretion.

Id.

Absent a compelling state interest, racial discrimination in prison

job assignments states a violation of the Equal Protection Clause of

the Fourteenth Amendment and of the Due Process Clause of the

Fifth Amendment. See Wolff v. McDonnell, 418 U.S. 539, 556 (1974);

Black v. Lane, 824 F.2d 561, 562 (7th Cir. 1987). To establish an

equal protection violation based on racial discrimination in the delegation of job assignments to inmates, a plaintiff must show a discriminatory purpose as the motivating factor; showing that employment

practices have a discriminatory impact on a certain race is not enough.

See Castaneda v. Partida, 430 U.S. 482, 493 (1977); Village of

Arlington Heights v. Metropolitan Housing Dev. Corp. , 429 U.S. 252,

265-66 (1977); Foster v. Wyrick, 823 F.2d 218, 221 (8th Cir. 1987).

Clemonts' allegations were sufficient to survive a§ 1915(d) dismissal. We think it is obvious from the complaint that Clemonts and

West are of different races. Further, even if they were of the same

race, that would not end the inquiry, for it is entirely possible that an

individual of one race could discriminate against members of his own

race. The focus is on whether the defendant was motivated by a dis-

 2
criminatory purpose, not on the race of the defendant. See St. Francis

College v. Al-Khazraji, 481 U.S. 604, 609-10 (1987).

Clemonts claimed that West gave whites more desirable job assignments than blacks. He also claimed discrimination in giving pay

raises. Further, Clemonts claimed that West had made derogatory

slurs against blacks. The lawsuit has an arguable basis in law and in

fact. Accordingly, we conclude that the district court abused its discretion in dismissing the Complaint pursuant to§ 1915(d).

We therefore vacate the judgment of the district court and remand

for further proceedings. 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 decisional process.

The motion for appointment of counsel is denied.

VACATED AND REMANDED

 3