UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JUDE A. PREVAL,
Plaintiff-Appellant,

v.

JANET RENO, Attorney General;
                                                                 No. 99-6950
RAYMOND SMITH; PIEDMONT
REGIONAL JAIL; LEWIS BARLOW,
Superintendent; EDWARD I. GORDON,
Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
T. S. Ellis, III, District Judge.
(CA-99-413)

Submitted: December 29, 1999

Decided: January 13, 2000

Before WILLIAMS and KING, Circuit Judges, and HAMILTON,
Senior Circuit Judge.

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Affirmed as modified in part, vacated in part, and remanded by
unpublished per curiam opinion.

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COUNSEL

Jude A. Preval, Appellant Pro Se.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Jude A. Preval, a native and citizen of Haiti, is currently in the cus-
tody of the Immigration and Naturalization Service (INS) awaiting
deportation. While in INS confinement, Preval filed a complaint
under 42 U.S.C.A. § 1983 (West Supp. 1999), alleging that the appel-
lees violated his civil rights. The district court dismissed the com-
plaint as frivolous under 28 U.S.C.A. § 1915A(b)(1) (West Supp.
1999) and 42 U.S.C.A. § 1997e(c) (West Supp. 1999).

Dismissals under § 1915A are reviewed de novo. See Liner v.
Goord, ___ F.3d ___, 1999 WL 734693 (2d Cir. Sept. 22, 1999) (No.
98-2925). Both 28 U.S.C.A. § 1915A and 42 U.S.C.A. § 1997e(c)
require dismissal of a complaint in a civil action brought by a prisoner
if it is frivolous, malicious, or fails to state a claim upon which relief
may be granted. A claim is frivolous if "it lacks an arguable basis
either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325
(1989).

We affirm on modified grounds the district court's dismissal of
Preval's claims as to the named defendants and the claims concerning
jail conditions and the failure to provide adequate medical care.1 We
note that 28 U.S.C.A. § 1915A and 42 U.S.C.A.§ 1997e(c) apply
only to prisoners, and that the circumstances of Preval's confinement
as an INS detainee are not encompassed within the statutory defini-
tion of "prisoner." See Ojo v. INS, 106 F.3d 680, 682 (5th Cir. 1997).
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1 To the extent that Preval's complaint may be read to claim that his
constitutional rights were violated because of his detention in the same
facility in which prisoners convicted of criminal offenses were housed,
we conclude that an argument that INS detainees must be separately con-
fined fails to state a claim upon which relief can be granted.

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However, because the district court properly determined that Pre-
val's claims against defendants Janet Reno, Raymond Smith, Lewis
Barlow and Edward I. Gordon are based solely on the supervisory
nature of their positions, we affirm the dismissal of the claims against
them. See Lopez v. Robinson, 914 F.2d 486, 494 (4th Cir. 1990). The
court also properly determined that the Piedmont Regional Jail is not
a "person" and is therefore not amenable to suit under § 1983, and we
affirm dismissal of the claims against the jail for that reason. See Will
v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989).

We further agree with the district court that it was unnecessary to
accord Preval an opportunity to particularize and amend his complaint
as to his claims concerning jail conditions and inadequate medical
care. Although there is not an established constitutional standard in
this circuit for the review of § 1983 claims filed by INS detainees, we
find that under any constitutional standard, Preval has failed to state
a claim with regard to these claims, and we affirm dismissal of those
claims on that basis. See Strickler v. Waters , 989 F.2d 1375, 1381-82
(4th Cir. 1993) (addressing § 1983 claims based upon jail conditions);
Martin v. Gentile, 849 F.2d 863, 870 (4th Cir. 1988) (addressing alle-
gations of inadequate medical care).

We conclude, however, that Preval's complaint that he was not
adequately protected against an assault was prematurely dismissed for
the following reasons. First, the failure to protect claim was not pled
with sufficient specificity to permit the court to determine with cer-
tainty that Preval could articulate no set of facts that stated a claim.
See Coleman v. Peyton, 340 F.2d 603, 604 (4th Cir. 1965) (explaining
that when a pro se complaint contains a potentially cognizable claim,
the plaintiff should be allowed to particularize the claim). Also,
because there is no established constitutional standard in this circuit
for reviewing § 1983 claims by INS detainees, Preval should be
granted the opportunity to set forth arguments as to the appropriate
standard. The dismissal of Preval's "failure to protect" claim is
accordingly vacated. On remand, the district court should allow Pre-
val the opportunity to particularize his allegations to state a claim of
constitutional magnitude2 and to amend his complaint to name defen-
dants who were specifically responsible for failing to protect him.
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2 By this disposition, we do not intend to constrain the district court's
evaluation of Preval's claim on remand. Thus, should such a disposition
be warranted, the district court remains free to conclude upon remand
that Preval's averment of inadequate protection, even as particularized,
fails to state a cognizable claim.

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We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.

AFFIRMED AS MODIFIED IN PART,

VACATED IN PART, AND REMANDED

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