Howard C. Bankston v. Joseph F. Dirisio State of Tennessee

872 F.2d 1023, 1989 U.S. App. LEXIS 4308, 1989 WL 31122

• Court: Court of Appeals for the Sixth Circuit
• Decided: March 30, 1989
• Docket: 88-6252
• Status: Unpublished

Opinion

872 F.2d 1023

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
Howard C. BANKSTON, Plaintiff-Appellant,
v.
Joseph F. DIRISIO; State of Tennessee, Defendants-Appellees.

No. 88-6252.

United States Court of Appeals, Sixth Circuit.

March 30, 1989.

Before BOYCE F. MARTIN, Jr., KRUPANSKY and MILBURN, Circuit Judges.

ORDER

Plaintiff, Howard C. Bankston, appeals an order of the district court which dismissed his action brought pursuant to both 42 U.S.C. Sec. 1983 and 28 U.S.C. Sec. 2254. He now moves for the summary reversal of that order. Upon examination of the record and plaintiff's brief, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).

Plaintiff tendered an application for leave to proceed in forma pauperis and a complaint in the District Court for the Eastern District of Tennessee. In support of his cause of action, he alleged that defendants, Judge Joseph F. Dirisio and the State of Tennessee, had interfered with a number of his constitutional rights during the course of a legal proceeding in 1983 which resulted in the determination that he was a habitual traffic offender. After granting the request for pauper status, the district court construed the complaint as both a civil action for damages under 42 U.S.C. Sec. 1983 and a petition for a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254. The district court also determined that plaintiff could not proceed under the first of those statutes as both defendants in the civil rights action were immune from suit due to the doctrines of sovereign and judicial immunity. In addition, the court observed that plaintiff could not seek habeas relief as he had not complied with the exhaustion requirements contained in 28 U.S.C. Sec. 2254(b). As a result, the district court concluded that plaintiff's claims were frivolous and ordered their dismissal pursuant to 28 U.S.C. Sec. 1915(d). This appeal ensued.

Based upon a careful review of the record and plaintiff's brief, this court concludes that the district court did not err in dismissing the complaint. Accordingly, the motion to summarily reverse is hereby denied and the district court's final order is hereby affirmed. Rule 9(b)(5), Rules of the Sixth Circuit.