Unpublished Dispositiondarwin Gravitt, Plaintiff-appellant v. Jerry Sherman, Defendant-appellee, 802 F.2d 457 (6th Cir. 1986)

BEFORE: MARTIN and GUY, Circuit Judges; and SUHRHEINRICH, District Judge^* 

ORDER

This matter is before the Court upon consideration of the appellant's motion for appointment of counsel. The appellant is appealing the judgment entered on August 21, 1985, by the district court dismissing the case pursuant to 28 U.S.C. § 1915(d). The appellant has filed an informal brief; the appellee has also filed a brief.

The case has been referred to a panel of this Court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon consideration of the briefs, documents filed on appeal, and the record, the panel agrees unanimously that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure.

The appellant, Darwin Gravitt, an inmate of the Huron Men's Facility, filed this action pursuant to 42 U.S.C. § 1983 against a hearing officer at Marquette Branch Prison. The appellant claims that the hearing officer should have disqualified himself at the appellant's major misconduct hearing due to a conflict of interest. The hearing officer is a paid employer of the Michigan Department of Corrections and the appellant alleges that this denies him due process of law because the appellant is not an impartial factfinder. See Wolff v. McDonnell, 418 U.S. 539 (1974).

The district court found the appellant had no basis for establishing success on the merits and dismissed the case pursuant to 28 U.S.C. § 1915(d).

Harris v. Johnson, 784 F.2d 222, 224 (6th Cir. 1986), requires the court to "explicitly state that the statute [28 U.S.C. § 1915(d)] is being invoked and that the complaint is being dismissed as frivolous." The district court cited to the statute, but made no mention of the frivolity of the case.

Accordingly, it is ORDERED that the district court judgment be vacated and the case is remanded for further proceedings consistent with this order. Rule 9(d) (4), Rules of the Sixth Circuit. It is further ORDERED that the motion for appointment of counsel be denied.