Pollock v. Potter

22 F. App'x 608

• Court: Court of Appeals for the Sixth Circuit
• Decided: December 14, 2001
• Docket: No. 00-4212
• Status: Published

Opinion

ORDER

Mark Lee Pollock, an inmate incarcerated at the Warren Correctional Institute in Lebanon, Ohio, appeals a district court judgment dismissing his civil rights action filed pursuant to 42 U.S.C. § 1983. This case has been referred to a panel of the court pursuant to Rule 34(j)(l), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R.App. P. 34(a).

Pollock filed this action in the Lucas County Court of Common Pleas against United States District Judge John W. Potter and Lucas County Court of Appeals Judge Peter M. Handwork. The complaint alleges that Pollock was convicted of aggravated robbery in 1991. Pollock asserts generally that the defendants have conspired to violate his rights. In particular, he asserts that Judge Handwork erred in affirming Pollock’s conviction, and that Judge Potter has erroneously denied repeated petitions for habeas corpus filed by Pollock. The action was removed to the United States District Court for the Northern District of Ohio. The defendants filed a motion to dismiss pursuant to Fed. R.Civ.P. 12(b)(6). The district court granted the motion to dismiss after concluding that the defendants were immune from liability. Reconsideration was denied in a marginal entry order. Pollock has failed a timely appeal, asserting that the matter was improperly removed from state to federal court, and that the district court erred in granting the defendants’ motion to dismiss.

Upon de novo review, we conclude that the case was removable to federal court and was timely removed. See 28 U.S.C. §§ 1442(a)(3), 1446(b). Moreover, after construing the complaint in the light most favorable to Pollock, we conclude that Pollock could prove no set of facts in support of his claims that would entitle him to relief. See Sistrunk v. City of Strongsville, 99 F.3d 194, 197 (6th Cir.1996). The defendants are absolutely immune from suit for monetary damages for the actions complained of, which were taken within the scope of their official duties. See Pierson v. Ray, 386 U.S. 547, 553-54, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967); Johnson v. Turner, 125 F.3d 324, 333 (6th Cir.1997).

In addition, equitable relief is not warranted under the circumstances of this case. Pollock did not appeal from the denial of his first federal habeas corpus petition. He cannot use a § 1983 request for injunctive relief as a substitute for the appeal which he failed to take from the denial of that first federal habeas corpus petition. See Heck v. Humphrey, 512 U.S. 477, 486-87, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994) (federal habeas corpus relief must be granted first before a § 1983 suit can be used to attack a conviction).

Accordingly, the district court’s judgment is affirmed. Rules of the Sixth Circuit.