UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 05-6768

JONATHAN LEIGH HENSLEE,

Plaintiff - Appellant,

versus

LIEUTENANT LEWIS, Lieutenant of Rutherford

County Jail; MR. YOUNG, Correctional Officer

at Rutherford County Jail; TINA, Correctional

Officer at Rutherford County Jail,

Defendants - Appellees.

Appeal from the United States District Court for the Western

District of North Carolina, at Asheville. Graham C. Mullen, Chief

District Judge. (CA-04-152)

Submitted: September 26, 2005 Decided: November 3, 2005

Before MOTZ, TRAXLER, and GREGORY, Circuit Judges.

Affirmed in part, vacated in part, and remanded by unpublished per

curiam opinion.

Jonathan Leigh Henslee, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
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PER CURIAM:

Jonathan Leigh Henslee filed a 42 U.S.C. § 1983 (2000)

complaint charging that employees at the Rutherford County Jail

violated his constitutional rights. Specifically, Henslee claimed

that he was placed in restraints for two weeks under unsanitary

conditions and without a mattress or covers. He also asserted that

one employee encouraged inmates to attack him. Henslee sought

damages and a reduction in his sentence. The district court denied

relief under 28 U.S.C. § 1915A (2000), finding that Henslee failed

to state a claim. Henslee timely appealed. 

Under § 1915A, the district court is required to review

any “complaint in a civil action in which a prisoner seeks redress

from a governmental entity . . . [and] identify cognizable claims

or dismiss the complaint, or any portion of the complaint, if the

complaint . . . fails to state a claim upon which relief may be

granted . . . .” This court “reviews dismissals for failure to

state a claim de novo.” Veney v. Wyche, 293 F.3d 726, 730 (4th

Cir. 2002). A court should not dismiss a complaint for failure to

state a claim “unless after accepting all well-pleaded allegations

in the plaintiff’s complaint as true and drawing all reasonable

factual inferences from those facts in the plaintiff’s favor, it

appears certain that the plaintiff cannot prove any set of facts in

support of his claim entitling him to relief.” Id. (internal

marks and citation omitted). Moreover, when such a dismissal
*

The district court noted that Henslee failed to provide dates

for the alleged incidents and therefore it was not possible to

determine whether his complaint was filed within the applicable

statute of limitations. Upon remand, the district court will be

able to direct Henslee to provide this information.

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involves a civil rights complaint, a court “must be especially

solicitous of the wrongs alleged and must not dismiss the complaint

unless it appears to a certainty that the plaintiff would not be

entitled to relief under any legal theory which might plausibly be

suggested by the facts alleged.” Id. (internal quotation marks

and citation omitted).

As the district court correctly noted, Henslee’s

complaint failed to allege any injury from being held in restraints

for two weeks in unsanitary conditions. However, liberally

construing Henslee’s discovery request, Gordon v. Leake, 574 F.2d

1147, 1151 (4th Cir. 1978), he asserted that he sustained an elbow

injury requiring surgery as a result of being in restraints.

Accordingly, we find that dismissal of this claim under § 1915A was

premature and that Henslee should have been afforded an opportunity

to particularize his complaint.* Accordingly, we vacate the

portion of the district court’s order dismissing this claim and

remand for further proceedings consistent with this opinion.

As to Henslee’s claim that a jail employee incited other

inmates to attack him, Henslee did not contend that any inmates in

fact attacked him. Mere threats or verbal abuse by prison

officials, without more, do not state a cognizable claim under
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§ 1983. Collins v. Cundy, 603 F.2d 825, 827 (10th Cir. 1979). We

therefore affirm the district court’s dismissal of this portion of

Henslee’s complaint. 

In light of the remand, we decline to address Henslee’s

challenge to the district court’s denial of his requests for

discovery and appointment of counsel. 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.

 AFFIRMED IN PART,

 VACATED IN PART,

 AND REMANDED