Unpublished Dispositionleonard Leon Wilson, Jr., Plaintiff-appellant, v. John D. Morgan, Individually and Officially; Ernie E.williams, Individually and Officially, Defendants-appellees, 826 F.2d 1066 (6th Cir. 1987)

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 motion for counsel, the briefs and the record, this panel agrees unanimously that oral argument is not needed. Rule 34(a), Fed. R. App. P.

The plaintiff is a state prisoner confined at the Marion Correctional Institution at Marion, Ohio. In a complaint and series of amended complaints he alleged that the defendants, corrections officers at the Marion Correctional Institute, violated his Fourth and Fourteenth Amendment rights. In specific terms, the plaintiff complained that his personal property, including legal correspondence, had been destroyed during a search of his cell block.

On the recommendation of the magistrate, the district court dismissed the plaintiff's action due to his pending claim before the Ohio Court of Claims. After the time for appeal had expired by 130 days, plaintiff filed a motion to set aside the judgment of dismissal entered on September 10, 1986. Rule 60(b) (1), Fed. R. Civ. P.

Because the defendant failed to take a timely direct appeal from the judgment of September 10, 1986, our review is limited to the question of whether the district court abused its discretion in denying the plaintiff's motion to vacate. Having reviewed the record and the applicable law, we conclude that the district court did not abuse its discretion in denying the plaintiff's motion to vacate. Rule 9(b) (5), Rules of the Sixth Circuit.

It is ORDERED that the motion for counsel be denied and the judgment of the district court be affirmed under Rule 9(b) (5), Rules of the Sixth Circuit.