Unpublished Dispositionkent C. Cross, Plaintiff-appellant, v. John D. Morgan; Arnita Reese; Patricia R. Jones,defendants-appellees, 856 F.2d 193 (6th Cir. 1988)

Before NATHANIEL R. JONES and RYAN, Circuit Judges, and THOMAS G. HULL, Chief District Judge.^* 

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 briefs, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

This pro se prisoner appeals the dismissal of his civil rights action filed under 42 U.S.C. § 1983 in which he alleged that conditions in protective control at the Marion Correctional Institution, where plaintiff was then incarcerated, deprived him of his eighth amendment right to remain free from cruel and unusual punishment. The district court concluded that plaintiff is precluded from relitigating his claims because an earlier civil rights action, in which plaintiff alleged some of the same claims asserted here, resulted in a judgment against plaintiff on the merits. Further, the district court concluded that plaintiff alleged nothing which would arise to the level of an eighth amendment violation.

Plaintiff is precluded from relitigating those claims which he earlier unsuccessfully prosecuted. See Montana v. United States, 440 U.S. 147, 153-54 (1979). Plaintiff's remaining allegations do not arise to the level of an eighth amendment violation. See Parrish v. Johnson, 800 F.2d 600, 604-05 (6th Cir. 1986); Bellamy v. Bradley, 729 F.2d 416 (6th Cir.), cert. denied, 469 U.S. 845 (1984).

Accordingly, we affirm the judgment of the district court for the reasons stated in the magistrate's report and recommendation filed on June 19, 1987, and adopted by the district court on January 12, 1988. Rule 9(b) (5), Rules of the Sixth Circuit.