Johnny Lee Kirby v. M. Allen Ehmling, Fred A. Kelly, and State of Tennessee

762 F.2d 1008, 1985 U.S. App. LEXIS 14533, 1985 WL 13252

• Court: Court of Appeals for the Sixth Circuit
• Decided: April 1, 1985
• Docket: 84-5938
• Status: Unpublished

Opinion

762 F.2d 1008

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
JOHNNY LEE KIRBY, PLAINTIFF-APPELLANT,
v.
M. ALLEN EHMLING, FRED A. KELLY, AND STATE OF TENNESSEE,
DEFENDANTS-APPELLEES.

NO. 84-5938

United States Court of Appeals, Sixth Circuit.

4/1/85

ORDER

BEFORE: ENGEL and KRUPANSKY, Circuit Judges; and HULL, Chief District Judge.*

Kirby requests counsel on appeal from the district court's order dismissing his prisoner's civil rights case. This 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 Kirby's informal brief, this panel agrees unanimously that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure.

Kirby sued his court-appointed lawyer and the state court judge involved in his post-conviction relief hearing. Kirby alleged that his counsel was ineffective and that the judge was intimidating. He requested only damages and specifically stated that he was not seeking habeas corpus relief.

The district court held that the judge was absolutely immune from damages. Pierson v. Ray, 386 U.S. 547, 553-5 (1967); Stump v. Sparkman, 435 U.S. 349, 356-7 (1978). There was no state action with regard to the court-appointed attorney. Mulligan v. Schlachter, 389 F.2d 231, 233 (6th Cir. 1968); see also Polk County v. Dodson, 454 U.S. 312, 325 (1981) (no state action by public defender). So the district court was correct to dismiss the action as frivolous under 28 U.S.C. Sec. 1915(d).

The motion for counsel is denied, and the order of the district court is affirmed under Rule 9(d)(3), Rules of the Sixth Circuit, because the issues are not substantial and do not require oral argument.

* The Honorable Thomas G. Hull, Chief U.S. District Judge for the Eastern District of Tennessee, sitting by designation