James McMillen v. Kentucky State Penitentiary and Jefferson District Court

842 F.2d 332, 1988 U.S. App. LEXIS 3427, 1988 WL 23700

• Court: Court of Appeals for the Sixth Circuit
• Decided: March 18, 1988
• Docket: 87-5833
• Status: Unpublished

Opinion

842 F.2d 332

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.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 McMILLEN, Plaintiff-Appellant,
v.
KENTUCKY STATE PENITENTIARY and Jefferson District Court,
Defendants-Appellees.

No. 87-5833.

United States Court of Appeals, Sixth Circuit.

March 18, 1988.

Before ENGEL, MERRITT and KRUPANSKY, Circuit Judges.

ORDER

Plaintiff appeals the district court's judgment sua sponte dismissing his action for frivolity. The appeal has been referred to a panel pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon consideration of the certified record and the parties' briefs, the panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).

Plaintiff filed two factually unsupported documents styled as complaints which suggested an action for negligence and to collect a debt for a wrongful conveyance. Jurisdiction was not asserted in either complaint. The district court sua sponte dismissed the action as frivolous without citing to 28 U.S.C. Sec. 1915(d) as is required under Tingler v. Marshall, 716 F.2d 1109 at 1111 (6th Cir.1983). See Harris v. Johnson, 784 F.2d 222 (6th Cir.1986).

Despite the noncompliance with Tingler, we conclude the action was properly dismissed due to its patently frivolous nature which failed to vest subject matter jurisdiction in the district court. Plaintiff failed to present any facts or cognizable claims in his action. As such, the matter was so implausible, attenuated and insubstantial that the district court's dismissal may be upheld as a dismissal for lack of subject matter jurisdiction. See Oneida Indian Nation v. County of Oneida, 414 U.S. 661 (1974); Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59 (1978); Hagans v. Lavine, 415 U.S. 528 (1974).

The district court's judgment is accordingly affirmed. Rule 9(b)(5), Rules of the Sixth Circuit.