820 F. 2d 405 - Mason v. H Brasher

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 motion for leave to proceed in forma pauperis and transcript, record and the appellant's brief, this panel agrees unanimously that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure.

Plaintiff filed a 42 U.S.C. Sec. 1983 civil rights complaint and amended complaint which alleged that conspiracy and fraud engaged in by the defendants resulted in plaintiff's conviction and incarceration. Release from custody and damages were sought. The magistrate filed a report and recommendation to which plaintiff objected. The district court judge adopted the magistrate's report and dismissed the case after making a de novo review.

Upon review, we affirm the dismissal of the plaintiff's complaint for reasons other than those stated by the district court. By implication, the plaintiff sought to challenge the validity of his state court conviction. A district court may not entertain such a suit, however, until after the plaintiff establishes the unconstitutionality of his conviction pursuant to a petition for writ of habeas corpus under 28 U.S.C. Sec. 2254. See Hadley v. Werner, 753 F.2d 514 (6th Cir.1985) (per curiam).

It is, accordingly, ORDERED that the motion for leave to proceed in forma pauperis and for transcript at government expense be denied. The district court's judgment dismissing plaintiff's suit is also hereby affirmed pursuant to Rule 9(b)(5), Rules of the Sixth Circuit. Such dismissal, however, is without prejudice to plaintiff's opportunity to refile his 42 U.S.C. Sec. 1983 suit if and when he establishes, through a writ of habeas corpus, that he is in custody in violation of the Constitution or laws of the United States.