UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

WAYNE A. GARRETT,

Plaintiff-Appellant,

v.

RONALD ANGELONE, Director; RUFUS

FLEMING, Regional Director; D. A.

GARRAGHTY, Chief Warden, Virginia

Department of Corrections; J. D.

OATES, III, Medical Administrator,

Virginia Department of Corrections;

DONALD SWETTER, M.D., Medical

Director, Greensville Correctional

No. 00-6475

Center; GREENSVILLE CORRECTIONAL

CENTER; S. ROBINSON, Lieutenant,

Correctional Officer; DOCTOR SHAW;

DOCTOR BHULLER, M.D.,

Orthopedics; A. MILLNER, Nurse;

COMMONWEALTH OF VIRGINIA; ROBERT

G. O'HARA, JR., Judge, Circuit

Court of the County of Greensville;

ROBERT C. WRENN, Clerk, Circuit

Court of the County of Greensville,

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Albert V. Bryan, Jr., Senior District Judge.

(CA-00-154-A)

Submitted: August 15, 2000

Decided: September 8, 2000

Before WIDENER, MOTZ, and KING, Circuit Judges.
Affirmed in part and vacated and remanded in part by unpublished

per curiam opinion.

_________________________________________________________________

COUNSEL

Wayne A. Garrett, Appellant Pro Se.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Wayne Anthony Garrett, a Virginia state prisoner, filed a complaint

pursuant to 42 U.S.C.A. § 1983 (West Supp. 2000) alleging deliberate

indifference to his serious medical needs while incarcerated at the

Greensville Correctional Center. He further alleged that when he

attempted to file a complaint in state court based upon the alleged

deliberate indifference, he was denied access to the courts.

The district court dismissed the complaint pursuant to 28 U.S.C.A.

§ 1915A(b)(1) (West 2000) for failure to state a claim upon which

relief may be granted. The court determined that the complaint contained the same allegations as were set forth in a prior complaint in

Garrett v. Angelone, No. CA-99-1734-AM, that was dismissed pursuant to 28 U.S.C. § 1915A(b)(1). The court determined that principles

of res judicata and collateral estoppel applied. As to the allegation

concerning lack of access to the state courts, the court determined that

Garrett suffered no prejudice because he was able to bring his claim

in federal court "where it has been determined that his claim for deliberate indifference to his serious medical needs is without merit." For

those reasons, the court dismissed Garrett's complaint. Garrett filed

a motion to alter or amend judgment pursuant to Fed. R. Civ. P. 59(e),

and the motion was denied.

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Dismissals under § 1915A are reviewed de novo. See Liner v.

Goord, 196 F.3d 132, 134 (2d Cir. 1999). A district court's ruling on

a Rule 59(e) motion is reviewed for abuse of discretion. See Pacific

Ins. Co. v. American Nat'l Fire Ins. Co., 148 F.3d 396, 402 (4th Cir.

1998), cert. denied, 525 U.S. 1104 (1999).

Garrett's notice of appeal referenced only the district court's February 25, 2000 order denying Garrett's Rule 59(e) motion. We need

not determine whether Garrett's notice of appeal impliedly appeals

the court's final order of February 14, 2000, see C.A. May Marine

Supply Co. v. Brunswick Corp., 649 F.2d 1049, 1056 (5th Cir. 1981),

because even assuming we have jurisdiction to review only the order

denying the Rule 59 motion, we find the district court abused its discretion in denying that motion.

The two complaints filed by Garrett address different allegations

against different defendants at different correctional institutions. Consequently, the instant complaint is not barred by res judicata or collateral estoppel. For that reason, we vacate the district court's orders and

remand Garrett's deliberate indifference claim to the district court for

consideration on the merits. Garrett's claim as to lack of access to the

state courts was dismissed on the basis that Garrett suffered no prejudice because the claims he wished to raise in state court were considered in federal court and determined to be meritless. Because the

claims have not yet been considered on the merits, we also vacate the

court's orders as to the lack of access claim and remand for further

consideration.

For the following reasons, however, we affirm the court's orders

in part on modified grounds. Garrett lists as defendants: Ronald

Angelone, the Commonwealth of Virginia, Judge Robert O'Hara, Jr.,

and the Greensville Correctional Center. Garrett alleges no specific

acts of wrongdoing on the part of Ronald Angelone and appears to

proceed on a theory of respondeat superior, which is not applicable

in § 1983 actions. See Vinnedge v. Gibbs , 550 F.2d 926, 928-29 (4th

Cir. 1977). The Commonwealth of Virginia is entitled to Eleventh

Amendment immunity. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 98-100 (1984). Judge O'Hara is also immune from

suit because judges are absolutely immune from a claim for damages

arising out of their judicial actions. See Stump v. Sparkman, 435 U.S.

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349, 355-56 (1978). Finally, the Greensville Correctional Center is

not a "person" and is therefore not amenable to suit under § 1983. See

Will v. Michigan Dep't of State Police, 491 U.S. 58, 70 (1989). We

affirm the district court's orders denying relief on Garrett's complaint

as to Ronald Angelone, the Commonwealth of Virginia, Judge Robert

O'Hara, Jr., and the Greensville Correctional Center for the reasons

noted above.

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 AND REMANDED IN PART

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