Unpublished Dispositionjames Robert Winfree, Plaintiff-appellant, v. Kentucky Parole Board; Martha Layne Collins; Ron Simmons,defendants-appellees, 865 F.2d 1270 (6th Cir. 1989)

Before BOYCE F. MARTIN, Jr. and NATHANIEL R. JONES, Circuit Judges and JOHN FEIKENS, Senior District Judge.^* 

ORDER

James Robert Winfree appeals from the district court's order dismissing with prejudice his cause of action filed pursuant to 42 U.S.C. § 1983. 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 the briefs, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

The subject matter of Winfree's complaint is that his sentence has been miscalculated and that he has received final discharge and should be released. The district court dismissed the cause of action because the undisputed record revealed that Winfree is lawfully incarcerated. Therefore, the court reasoned Winfree could prove no set of facts on which relief could be granted.

Upon review, we affirm the district court's order of dismissal. It is worthy of note, however, that Winfree's complaint challenges the duration of his confinement and seeks immediate release along with monetary damages. Normally, the sole remedy would be a writ of habeas corpus. See Preiser v. Rodriguez, 411 U.S. 475, 490 (1973). However, inasmuch as Winfree's complaint is without any factual support, we affirm the district court's order dismissing Winfree's action brought under 42 U.S.C. § 1983 for the reasons set forth in the court's memorandum opinion dated May 31, 1988.

Accordingly, the order of the district court is hereby affirmed pursuant to Rule 9(b) (5), Rules of the Sixth Circuit.