Jesse Brumley v. Gene A. Scroggy and Oliver H. Barber, Jr.

831 F.2d 293, 1987 U.S. App. LEXIS 13732, 1987 WL 38694

• Court: Court of Appeals for the Sixth Circuit
• Decided: October 13, 1987
• Docket: 87-5345
• Status: Unpublished

Opinion

831 F.2d 293

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
Jesse BRUMLEY, Plaintiff-Appellant,
v.
Gene A. SCROGGY and Oliver H. Barber, Jr., Defendants-Appellees.

No. 87-5345.

United States Court of Appeals, Sixth Circuit.

Oct. 13, 1987.

Before WELLFORD and RALPH B. GUY, Jr., Circuit Judges, and JAMES HARVEY, Senior District Judge.*

ORDER

This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the record and the briefs, this panel agrees unanimously that oral argument is not needed. Fed.R.App.P. 34(a).

The plaintiff is a Kentucky prisoner confined at the Kentucky State Penitentiary (KSP) at Eddyville, Kentucky. On March 18, 1987, he filed a civil rights action pursuant to 42 U.S.C. Sec. 1983 against the warden of KSP and a Kentucky attorney who represented him and other KSP prisoners as a plaintiff class in a certified class action. In his complaint, the plaintiff sought to hold the defendants in contempt for violating the consent decree entered in that class action, Kendrick v. Bland, 541 F.Supp. 21, 27-45 (W.D.Ky.1981). On the recommendation of the magistrate, the district court dismissed the plaintiff's complaint without service as being frivolous under 42 U.S.C. Sec. 1915(d).

We now affirm the order of March 8, 1987, dismissing the plaintiff's complaint for frivolity. An action is frivolous and may be dismissed if it appears beyond doubt that the plaintiff could prove no set of facts which would entitle him to relief. Malone v. Colyer, 710 F.2d 258, 261 (6th Cir.1983). To be entitled to relief under 42 U.S.C. Sec. 1983, a plaintiff must plead and prove that the defendants, while acting under the color of state law, deprived him of a right secured by the United States Constitution or statutes. Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155-57 (1978); Coffey v. Multi-County Narcotic Bureau, 600 F.2d 570, 576 (6th Cir.1979). The plaintiff has neither pleaded nor proven that his claim arises under the Constitution or laws of the United States. Accordingly, he can prove no set of facts which entitle him to relief under Sec. 1983 and his complaint was properly dismissed.

Accordingly, the judgment of the district court as entered on March 18, 1987, is affirmed pursuant to Rule 9(b)(5), Rules of the Sixth Circuit.

* The Honorable James Harvey, Senior U.S. District Judge for the Eastern District of Michigan, sitting by designation