William Fears, Plaintiff-appellant,david E. Lewis, Plaintiff, v. Chillicothe Telephone Company; Chillicothe Telephonecompany Inmate Services, Defendants-appellees, 41 F.3d 1506 (6th Cir. 1994)

Before: MARTIN and BATCHELDER, Circuit Judges, and COHN, District Judge.^* 

ORDER

William Fears appeals a district court grant of summary judgment for defendants in this civil rights action filed under 42 U.S.C. § 1983. The 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).

Fears and another inmate incarcerated at the Chillicothe, Ohio, Correctional Institution filed their complaint in the district court alleging that the defendant telephone company impermissibly restricted inmates' access to telephone services. Specifically, plaintiffs objected to a policy under which recipients of collect telephone calls from inmates must undergo a credit check and agree to pay for calls before inmates can place collect calls to them. Plaintiffs sought $850,000 compensatory damages and $850,000 punitive damages. Cross-motions for summary judgment and responses in opposition were filed, and the district court granted summary judgment for defendants. Thereafter, only Fears filed a notice of appeal, and the district court granted him leave to proceed in forma pauperis. On appeal, Fears contends that defendants' practices violate anti-trust laws and that defendants acted under color of state law.

Upon consideration, we conclude that plaintiffs' complaint is not barred under the doctrine of res judicata because the district court's dismissal of plaintiffs' earlier complaint as frivolous pursuant to 28 U.S.C. § 1915(d) does not constitute an adjudication on the merits. See Denton v. Hernandez, 112 S. Ct. 1728, 1734 (1992). Nonetheless, summary judgment for defendants on the merits was proper for the reasons stated by the district court in its opinion and order filed June 20, 1994. The defendants did not act under color of state law, and the defendants' policies were a reasonable response to its collect call losses. Further, Fears's claim that defendants violated federal anti-trust laws will not be addressed in the first instance on appeal because the claim was not pleaded in the complaint or addressed by the district court. See Foster v. Barilow, 6 F.3d 405, 407 (6th Cir. 1993).

Accordingly, the judgment of the district court is affirmed. Rule 9(b) (3), Rules of the Sixth Circuit.