Joseph L. Silverburg v. Ralph Evitts, Warden

933 F.2d 1009, 1991 U.S. App. LEXIS 16835, 1991 WL 88387

• Court: Court of Appeals for the Sixth Circuit
• Decided: May 28, 1991
• Docket: 90-6294
• Status: Unpublished

Opinion

933 F.2d 1009

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
Joseph L. SILVERBURG, Petitioner-Appellant,
v.
Ralph EVITTS, Warden, Respondent-Appellee.

No. 90-6294.

United States Court of Appeals, Sixth Circuit.

May 28, 1991.

Before MERRITT, Chief Judge, and RALPH B. GUY, Jr. and RYAN, Circuit Judges.

ORDER

This pro se Kentucky prisoner appeals the district court's order dismissing his petition for a writ of habeas corpus filed under 28 U.S.C. Sec. 2254. He has filed a motion for leave to proceed in forma pauperis, a motion for the appointment of counsel, and a motion for premptory (sic) writ of habeas corpus. The appeal has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).

In the application for habeas relief, Joseph L. Silverburg maintained that he had been denied due process rights during the course of parole revocation proceedings. Similar claims were previously addressed in civil rights actions filed by Silverburg under 42 U.S.C. Sec. 1983. See Silverburg v. Stewart, Nos. 90-5311/5930 (6th Cir.Nov. 13, 1990) (unpublished). It was noted that "Silverburg cannot obtain equitable relief for parole revocation through a Sec. 1983 action. Preiser v. Rodriguez, 411 U.S. 475, 490 (1973); Dixon v. Alexander, 741 F.2d 121, 124-25 (6th Cir.1984). Rather, his only proper remedy is to pursue a writ of habeas corpus. 411 U.S. at 490; 741 F.2d [at 124-25]." Id., slip op. at 2.

Additionally, we note the dismissal of the present case appears based, in part, on a prior history of frivolous litigation. There is no indication that the allegations of an improper parole revocation have been determined on the merits. Cf. Morrissey v. Brewer, 408 U.S. 471, 487-90 (1972).

Accordingly, the motion for leave to proceed in forma pauperis is granted and all other pending motions are denied. The district court's order is hereby vacated and the matter is remanded for further proceedings. Rule 9(b)(3), Rules of the Sixth Circuit.