William Isom Moses, Plaintiff-appellant, v. Barbara Carnes, Defendant-appellee, 979 F.2d 851 (6th Cir. 1992)

ORDER

William Isom Moses, a pro se Kentucky prisoner, appeals the district court's judgment dismissing his civil rights 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, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

Seeking two million dollars in damages, Moses sued the attorney appointed by the court to defend him in his state criminal proceeding. He alleged that the attorney rendered ineffective assistance, thus depriving him of his rights under the Sixth, Eighth, Thirteenth, and Fourteenth Amendments. In a report issued May 6, 1992, the magistrate judge recommended that Moses's complaint be dismissed as frivolous pursuant to 28 U.S.C. § 1915(d) because the defendant was not acting under color of state law. The district court overruled Moses's objections, adopted the magistrate judge's report, and dismissed the complaint in a judgment filed May 20, 1992.

On appeal, Moses continues to argue the merits of his claim. In addition, he complains that the district court was biased and that the district court's sua sponte dismissal deprived him of his Seventh Amendment right to a jury trial. In his brief, Moses requests the appointment of counsel should oral argument be scheduled.

Upon review, we affirm the district court's judgment because the district court did not abuse its discretion in dismissing Moses's complaint pursuant to § 1915(d). See Denton v. Hernandez, 112 S. Ct. 1728, 1734 (1992).

A complaint may be dismissed as frivolous under § 1915(d) when it fails to present any claim with an arguable or rational basis in law or fact. Neitzke v. Williams, 490 U.S. 319, 326 (1989). Moses's claim lacks an arguable basis in law for the reason stated by the magistrate judge.

Moses's additional complaints on appeal concerning the district court's handling of his case are equally baseless. He presents no evidence to support his claim of bias on the part of the district court other than the fact that the district court ruled against him. This is patently insufficient.

Moses's Seventh Amendment issue is also meritless. See Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987); Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir.), cert. denied, 449 U.S. 953 (1980).

Accordingly, we deny the request for counsel. The district court's judgment, filed May 20, 1992, is affirmed. Rule 9(b) (3), Rules of the Sixth Circuit.