dissenting:
I cannot agree with the majority’s conclusion that Wiggins has failed to state a claim against Rodriguez under 42 U.S.C. § 1983,1 and that we can therefore properly affirm dismissal of Wiggins’ complaint.
Allegations in a prisoner’s pro se civil rights complaint are to be held to less stringent standards than formal pleadings drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595, 30 L.Ed.2d 652 (1972). “Such a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Hughes v. Rowe, 449 U.S. 5, 101 S.Ct. 173, 176, 66 L.Ed.2d 163 (1980) (emphasis added).
As the majority correctly points out, Wiggins alleged that Rodriguez “knowingly, wilfully and intentionally . .. showed gross disregard for plaintiffs’ [s/c] civil and constitutional rights in allowing plaintiff to be subjected to cruel and unusual punishment in administrative] segregation] w/out due process of law as required by law. (See Exhibit ‘A’).” Rec., vol. I, at 3. Attached to Wiggins’ complaint as Exhibit A is a copy of the memorandum opinion of the district court that granted habeas corpus relief to Wiggins based on the same facts underlying his section 1983 claim. The habeas court ruled that Wiggins was denied due process by officials of the New Mexico state penitentiary when they revoked his honor status, removed him from a school release program, and put him in administrative segregation without following their own procedures.
The case of Kite v. Kelley, 546 F.2d 334 (10th Cir. 1976), makes it clear that under section 1983, “a superior may be held for acts of an inferior [if] the superior, expressly or otherwise, . . . acquiesced in the constitutional deprivations of which complaint is made.” Id. at 337. Wiggins’ allegation that Rodriguez knowingly allowed the constitutional violation to occur must be taken as true for purposes of a motion to dismiss. Hughes, 101 S.Ct. at 176. Given that allegation, which is sufficient to assert acquiescence in prohibited conduct, I cannot agree that beyond doubt Wiggins can prove no facts in support of his section 1983 claim.
I am convinced that dismissal of this action is improper under the Supreme Court guidelines recently articulated in Hughes. I would reverse.
. Contrary to the statement by the majority that Wiggins’ section 1983 claim for relief consisted only of the $1,000 state damage award, Wiggins also seeks from Rodriguez “damages for the loss of any and all finances, work study and grant monies and damages for the injury of def. loss of family....” Rec., vol. I, at 5.