                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT



                             No. 97-6623



ROBERT LEE DAVIS,

                                              Plaintiff - Appellant,

         versus


MALCOLM J. HOWARD,

                                               Defendant - Appellee.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Chief
District Judge. (CA-97-43-7-F1)


Submitted:   August 14, 1997               Decided:   August 25, 1997


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


Dismissed by unpublished per curiam opinion.


Robert Lee Davis, Appellant Pro Se.


Unpublished opinions are not binding precedent in this circuit.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

     Appellant appeals the district court's order denying his

motion to reconsider the   dismissal of his 42 U.S.C. § 1983 (1994)

complaint * and denying his motion to recuse. We have reviewed the
record and the district court's opinion and find that this appeal

is frivolous. Accordingly, we dismiss the appeal on the reasoning

of the district court. Davis v. Howard, No. CA-97-43-7-F1 (E.D.N.C.

Apr. 17, 1997). We deny Appellant's motion to stay and 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.




                                                         DISMISSED




      *
        As noted by the district court, although the action was
brought under 42 U.S.C. § 1983, it should have been brought under
Bivens v. Six Unknown Agents of Federal Bureau of Narcotics, 403
U.S. 388 (1971).

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