James Conway v. Joseph Grando

822 F.2d 1088, 1987 WL 38048

• Court: Court of Appeals for the Sixth Circuit
• Decided: May 26, 1987
• Docket: 86-1988
• Status: Unpublished

Opinion

822 F.2d 1088

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
James CONWAY, Plaintiff-Appellant,
v.
Joseph GRANDO, et al., Defendants-Appellees.

No. 86-1988

United States Court of Appeals, Sixth Circuit.

May 26, 1987.

Before KEITH and NORRIS, Circuit Judges, and PECK, Senior Circuit Judge.

This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon review of the record and appellant's brief, this panel unanimously agrees that oral argument is not necessary. Rule 34(a), Federal Rules of Appellate Procedure.

The pro se state prisoner appeals the district court's sua sponte dismissal of his 42 U.S.C. Sec. 1983 complaint as frivolous pursuant to 28 U.S.C. Sec. 1915(d). In his complaint, the plaintiff challenged the validity of his state court conviction.

Upon review, we conclude that the dismissal was proper because the plaintiff's sole remedy is a petition for a writ of habeas corpus. See Preiser v. Rodriguez, 411 U.S. 475, 490 (1973); Hadley v. Werner, 753 F.2d 514, 516 (6th Cir. 1985). Accordingly, the district court's order of dismissal is hereby affirmed pursuant to Rule 9(b)(5), Rules of the Sixth Circuit, without prejudice to the plaintiff's right to refile his complaint if and when he successfully challenges his conviction under 28 U.S.C. Sec. 2254.