Unpublished Dispositionrobert A. Gallagher, Plaintiff-appellant, v. State of Ohio, Ronald L. Fletcher, Kenneth Walondorf,richard Celeste, John Myers, G.l. Richardson,defendants-appellees,tom Elkin, Lee Mcclelland, Joseph Clifford, Defendants, 915 F.2d 1571 (6th Cir. 1990)

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

Robet Gallagher filed a civil rights action under 42 U.S.C. § 1983 seeking monetary damages from various defendants in connection with a state court criminal prosecution for driving while under the influence of alcohol. The district court subsequently granted summary judgment for all defendants and this appeal followed. Gallagher has filed a brief on appeal without benefit of counsel.

Upon consideration, we find that the record and the law support the district court's decision. Gallagher contends that his constitutional rights were violated because he was subject to a criminal trial based, in part, on the result of a breathalyzer test that was ultimately excluded at trial. The district court concluded, in a well-reasoned decision, that the State of Ohio was immune from suit in this context and that Gallagher had not suffered a constitutionally cognizable deprivation. We agree. In addition, Gallagher's attempt to pursue this action as one sounding in malicious prosecution is without merit as the underlying prosecution ended in his conviction. Dunn v. Tennessee, 697 F.2d 121, 126 (6th Cir. 1982), cert. denied, 460 U.S. 1086 (1983).

Accordingly, the district court's judgment is affirmed. Rule 9(b) (5), Rules of the Sixth Circuit.