815 F. 2d 704 - Johnson v. Dutton

This matter is before the Court upon consideration of plaintiff's appeal from the district court's order dismissing his 42 U.S.C. Sec. 1983 action as frivolous under 28 U.S.C. Sec. 1915(d). The matter has been referred to a panel of the Court pursuant to Rule 9, Rules of the Sixth Circuit. Upon examination of the certified record and the parties' briefs, the panel unanimously agrees that oral argument is not necessary. Rule 34(a), Federal Rules of Appellate Procedure.

Plaintiff alleged in the district court that defendants subjected him to cruel and unusual punishment by failing to prevent a riot at his place of incarceration, placing him under punitive segregation without cause and denying him medical attention. On appeal, he argues that sua sponte dismissal of the matter was erroneous because the lower court failed to consider his objections to the Magistrate's report. He further argues that prior to the dismissal of his action defendants should have been served and he should have been given an opportunity to amend the complaint in compliance with Tingler v. Marshall, 716 F.2d 1109 (6th Cir. 1983).

Upon consideration, this Court concludes that the district court's order dismissing this matter for frivolity is correct and must be affirmed. Although the district court failed to address plaintiff's objections and claim of a denial of medical attention, upon review of the entire record, this Court is convinced that all of plaintiff's claims including his claim of a denial of medical attention are frivolous due to the lack of sufficient factual support and for reasons stated in the Magistrate's report dated March 26, 1986. Moreover, this action was properly dismissed pursuant to 28 U.S.C. Sec. 1915(d). Harris v. Johnson, 784 F.2d 222 (6th Cir. 1986).

It is therefore ORDERED that the district court's order be and hereby is, as to all claims in this action, affirmed. Rule 9(b)(5), Rules of the Sixth Circuit.