Unpublished Dispositiondarwin Gravitt, Plaintiff-appellant, v. James Pogats, Defendant-appellee, 826 F.2d 1063 (6th Cir. 1987)

Annotate this Case
US Court of Appeals for the Sixth Circuit - 826 F.2d 1063 (6th Cir. 1987)

Aug. 10, 1987


Before MERRITT, Circuit Judge, and EDWARDS and CONTIE, Senior Circuit Judges.

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 the plaintiff's brief which contains a request for an injunction, this panel agrees unanimously that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure.

Gravitt initiated a 42 U.S.C. § 1983 civil rights complaint alleging that the defendant signed an order requiring that prisoners residing in C-Wing of the Huron Valley Men's Correctional Facility back out of their cells and that when they are moved they be handcuffed behind their backs. The district court dismissed the case as frivolous under 28 U.S.C. § 1915(d).

In order to state a claim under 42 U.S.C. § 1983, a plaintiff must allege: 1) that he was deprived of a right secured by the federal constitution or laws of the United States; and 2) that the deprivation was cause under color of state law. Parratt v. Taylor, 451 U.S. 527 (1981); Flagg Bros., Inc. v. Brooks, 436 U.S. 149 (1978). Gravitt has failed to state such a claim against the defendant. In addition, the claim raised in the complaint was not presented in his appellate brief and is deemed to have been abandoned and withdrawn for this court's review. Davis v. Maggio, 706 F.2d 568, 571 (5th Cir. 1983); United States v. Curtis, 568 F.2d 643, 645 n.1 (9th Cir. 1978). The issues raised in the appellate brief are not properly before this court because they were not raised in the district court. Chandler v. Jones, 813 F.2d 773 (6th Cir. 1987); Lyle v. Koehler, 720 F.2d 426, 428-29 (6th Cir. 1983); Hinsley v. Rose, 705 F.2d 863, 865 (6th Cir. 1983).

It is ORDERED that the request for an injunction be denied and the judgment of the district court be affirmed. Rule 9(b) (4), Rules of the Sixth Circuit.