Unpublished Dispositiondarryl Blankenship, Plaintiff-appellant, v. Michelle Phelps, Defendant-appellee, 825 F.2d 410 (6th Cir. 1987)

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US Court of Appeals for the Sixth Circuit - 825 F.2d 410 (6th Cir. 1987) Aug. 5, 1987


Before ENGEL, MERRITT and KRUPANSKY, Circuit Judges.

This case is before the court upon consideration of plaintiff's motion for appointment of counsel. The appeal has been referred to a panel of this court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the record and plaintiff's informal brief, this panel unanimously agrees that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure.

Plaintiff's complaint was properly dismissed for failure to state an actionable claim under 42 U.S.C. § 1983 because plaintiff failed to allege that the defendant acted under color of state law. Gomez v. Toledo, 446 U.S. 635, 640 (1980). On appeal, plaintiff asks that certain charges brought against him by defendant be removed from his record. However, such relief is available in federal court only in an action for habeas corpus relief. Further, federal habeas corpus relief is not available until all remedies available to plaintiff in the state courts have been exhausted. Keener v. Ridenour, 594 F.2d 581, 584 (6th Cir. 1979); 28 U.S.C. § 2254(c).

Therefore, the judgment of the district court is affirmed pursuant to Rule 9(b) (4), Rules of the Sixth Circuit. Plaintiff's motion for appointment of counsel is also hereby denied.