Ross Calvin Austin, Plaintiff-appellant, v. State of Tennessee Department of Corrections; Walter Kurtz,judge, Defendants-appellees, 891 F.2d 289 (6th Cir. 1989)

ORDER

Ross Calvin Austin appeals the order of the district court dismissing his complaint. 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).

Austin brought suit against the State of Tennessee, the Tennessee Department of Corrections, and Tennessee Circuit Judge Walter C. Kurtz. Austin claimed a constitutional right to a court-approved rehabilitation program that would allow him to continue receiving social security benefits. Although Austin designated his suit as a "Petition for Rehabilitation," the district court construed the suit to be an action filed pursuant to 42 U.S.C. § 1983 (1982).

The case was submitted to a magistrate who recommended that the complaint be dismissed as frivolous pursuant to 28 U.S.C. § 1915(d) (1982). The district court approved and adopted the magistrate's report and recommendation over Austin's objections.

Upon review, we find no error. The complaint was properly dismissed because it is frivolous within the meaning of 28 U.S.C. § 1915(d) (1982). A complaint is frivolous "where it lacks an arguable basis either in law or fact." Neitzke v. Williams, 109 S. Ct. 1827 (1989). Claims which lack an arguable basis in law include claims of infringement of a legal interest which clearly does not exist. 109 S. Ct. at 1833. Claims are frivolous where it is clear from the face of the complaint that defendants are entitled to immunity. Id.

Accordingly, for the reasons set forth in the magistrate's report and recommendation dated February 23, 1989, as adopted by the district court in its order dated March 28, 1989, we hereby affirm the order of the district court pursuant to Rule 9(b) (5), Rules of the Sixth Circuit. Austin's request for the appointment of counsel is also denied.