Unpublished Dispositionrobert F. Shields, Plaintiff-appellant, v. Anne Dyke, Judge; Robert v. Housel, Defendants-appellees, 758 F.2d 654 (6th Cir. 1985)

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US Court of Appeals for the Sixth Circuit - 758 F.2d 654 (6th Cir. 1985) 2/22/85


BEFORE: KEITH and KRUPANSKY, Circuit Judges; and NEWBLATT, District Judge.* 

Plaintiff has appealed from the district court's order denying reconsideration of the order dismissing his civil rights complaint. On November 14, 1984, this Court issued an order directing plaintiff to show cause why his appeal should not be dismissed for failure to file a timely notice of appeal. Plaintiff has filed a response to this order and a motion for remand. The case has been referred to a panel of the Court pursuant to Sixth Circuit Rule 9(a). Upon examination of plaintiff's brief and the record, the panel agrees unanimously that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure.

Plaintiff filed this civil rights complaint alleging that the state trial judge in plaintiff's murder trial failed to sequester the jury and instructed the jury to return a guilty verdict against him. He further alleged that the state prosecutor conspired with the judge. We find that the district court properly dismissed plaintiff's complaint as frivolous under 28 U.S.C. § 1915(d). Judges and prosecutors and absolutely immune from liability for their conduct when acting within their official capacities. Stump v. Sparkman, 435 U.S. 349 (1978); Imbler v. Pachtman, 424 U.S. 409 (1976).

Plaintiff has moved for remand for compliance with Tingler v. Marshall, 716 F.2d 1109 (6th Cir. 1983). The procedures required by Tingler for sua sponte dismissals are not applicable in cases dismissed under 28 U.S.C. § 1915(d). Brooks v. Dutton, ---- F.2d ----, No. 84-5099 (6th Cir. Jan. 8, 1985).

Accordingly, it is ORDERED that this Court's November 14, 1984, show cause order is discharged, plaintiff's motion for remand is denied, and the district court's judgment is affirmed. Sixth Circuit Rule 9(d) (3).


The Honorable Judge Stewart A. Newblatt, U.S. District Judge for the Eastern District of Michigan, sitting by designation