Ernest Templeton v. Richard Cady

837 F.2d 1091, 1988 U.S. App. LEXIS 945, 1988 WL 5082

• Court: Court of Appeals for the Sixth Circuit
• Decided: January 27, 1988
• Docket: 87-1888
• Status: Unpublished

Opinion

837 F.2d 1091

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
Ernest TEMPLETON, Plaintiff-Appellant,
v.
Richard CADY, Defendant-Appellee.

No. 87-1888.

United States Court of Appeals, Sixth Circuit.

Jan. 27, 1988.

Before MILBURN and RALPH B. GUY, Jr., Circuit Judges, and CONTIE, Senior Circuit Judge.

ORDER

The plaintiff appeals from the district court's judgment dismissing as frivolous this prisoner's civil rights case. 42 U.S.C. Sec. 1983. The appeal has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. After an examination of the record and the plaintiff's brief, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).

The plaintiff is a state prisoner in Jackson, Michigan. The defendant is a prison official. In his complaint, the plaintiff alleged that the defendant found him guilty of a minor misconduct violation in retaliation for the plaintiff's prior litigation against the defendant. The plaintiff requested injunctive relief and monetary damages.

The district court sua sponte dismissed the case as frivolous under 28 U.S.C. Sec. 1915(d). The court held that the complaint failed to contain any factual basis for the plaintiff's claim. We agree with the conclusions of the district court for the reasons stated in its order. Mere conclusory allegations of unconstitutional conduct are not enough. Chapman v. City of Detroit, 808 F.2d 459, 465 (6th Cir.1986).

In his brief, the plaintiff argues that the prison regulations applicable to his case were not properly promulgated. This issue was not raised in the district court. Ordinarily, an appellate court does not give consideration to issues not raised below, Hormel v. Helvering, 312 U.S. 552, 557 (1941), unless the obvious result would be a plain miscarriage of justice. 312 U.S. at 558. Because the plaintiff's argument is technical in nature, no miscarriage of justice is present here. So this issue is barred by the plaintiff's failure to raise it in the district court.

The judgment of the district court is affirmed under Rule 9(b)(5), Rules of the Sixth Circuit, because the issues are not substantial and do not require oral argument.