UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

LEONARD RICKY KELLY,
Plaintiff-Appellant,

v.
                                                                      No. 95-6914
FRANKLIN FREEMAN; ERNEST B.
FULLWOOD; ROBERT L. FARMER,
Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
James C. Fox, Chief District Judge.
(CA-95-198-5-F)

Submitted: October 31, 1995

Decided: April 23, 1996

Before NIEMEYER and WILLIAMS, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.

_________________________________________________________________

Affirmed in part, vacated in part, and remanded by unpublished per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

_________________________________________________________________

COUNSEL

Leonard Ricky Kelly, Appellant Pro Se.

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Unpublished opinions are not binding precedent in this circuit.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

PER CURIAM:

Leonard Ricky Kelly appeals from a district court order dismissing
his 42 U.S.C. § 1983 (1988) claim. We affirm the order in part, vacate
in part, and remand.

Kelly's suit involves his transfer from a North Carolina prison to
an Oklahoma prison. He contends that one state judge improperly
failed to advise Kelly about the possibility of such a transfer. He con-
tends that another state judge denied him due process by dismissing
his state claim against the first judge. Finally, he contends that the
state Secretary of Corrections breached Kelly's plea agreement by
transferring him to an Oklahoma prison to serve the remainder of the
sentence.

The district court properly found that the two state judges were
immune from damages because they were not acting in the clear
absence of jurisdiction. Stump v. Sparkman, 435 U.S. 349 (1978). The
district court, however, operated under a fundamental misconception
of law regarding Kelly's claim that his plea agreement was breached.
The court believed that the claim was not federal in nature. This is
incorrect. E.g., Santobello v. New York , 404 U.S. 257 (1971). Thus,
the district court abused its discretion is dismissing this claim under
28 U.S.C. § 1915(d) (1988). James v. Jacobson, 6 F.3d 233, 239 (4th
Cir. 1993) (abuse of discretion to dismiss under§ 1915(d) where
exercise of discretion flawed by erroneous legal premise).

Thus, although we affirm the order with regard to the dismissal of
the complaint against the state court judges, we vacate that portion of
the district court order dismissing Kelly's claim against the Secretary
regarding breach of the plea agreement. We remand that claim for fur-
ther proceedings not inconsistent with this opinion. We express no
opinion on the ultimate merits of the claim or other defenses to the
claim. 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

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