826 F. 2d 1064 - Marshall v. Seiter

Before RALPH B. GUY, Jr. and BOGGS, Circuit Judges and SUHRHEINRICH, District Judge.*

This matter is before the court upon consideration of plaintiff's appeal from the district court's judgment sua sponte dismissing his civil rights action filed under 42 U.S.C. Sec. 1983 for frivolity. The matter has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the parties' briefs and the certified record, the panel agrees unanimously that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure.

Plaintiff, an inmate at the Marion Correctional Facility, alleged in the district court that he was injured because defendants forced him to operate a substandard machine which they knew would subject him to a pervasive risk of harm. The district court dismissed the action as frivolous upon a finding that plaintiff failed to state a claim of constitutional magnitude. The district court concluded that plaintiff's allegations of negligent maintenance of prison facilities failed to state a claim for relief under the fourteenth amendment. Although plaintiff alleges gross negligence, these allegations are conclusory and are insufficient as a matter of law to convert a negligent claim into a constitutional tort.

For the reasons set forth in the district court's opinion of February 10, 1987, and on the basis of the authorities cited therein, we affirm the district court's dismissal. Rule 9(b)(5), Rules of the Sixth Circuit.