Unpublished Dispositionthomas Powell, Plaintiff-appellant, v. Susan Daltuva, et al., Defendants-appellees, 820 F.2d 405 (6th Cir. 1987)

ORDER

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 record and appellant's brief, this panel unanimously agrees that oral argument is not necessary. Rule 34(a), Federal Rules of Appellate Procedure.

This pro se federal prisoner appeals the dismissal of his Bivens -type action as frivolous pursuant to 28 U.S.C. § 1915(d). In his complaint, he alleged that the defendants conspired to present perjured testimony to the grand jury. He requested declaratory, injunctive and monetary relief. The district court construed his complaint as one attacking his indictment and subsequent conviction, and sua sponte dismissed it under Hadley v. Werner, 753 F.2d 514 (6th Cir. 1985) (per curiam).

Upon review, we conclude that the district court's reliance on Hadley is misplaced because the issues of comity and federalism facing the Hadley court are not present in this federal prisoner's Bivens -type action. Furthermore, because this plaintiff pled guilty to the charges, he is barred from challenging the constitutionality of his indictment through a habeas action. Tollett v. Henderson, 411 U.S. 258, 267 (1973).

Nonetheless, we conclude that the dismissal should be affirmed on other grounds. See Russ' Kwik Car Wash v. Marathon Petroleum Co., 772 F.2d 214, 216 (6th Cir. 1985). The plaintiff's allegations are vague, conclusory and totally unsupported by any facts. A pleading will not be sufficient to state a cause of action if its allegations are but conclusions. Place v. Shepherd, 446 U.S. 1239, 1244 (6th Cir. 1971).

Based on the above, the dismissal of the complaint was proper, and accordingly, is hereby affirmed pursuant to Rule 9(b) (5), Rules of the Sixth Circuit.