Unpublished Dispositionchristopher Allen Wallace, Plaintiff-appellant, v. Bill R. Story, Warden, Federal Correctional Institution,ashland, Kentucky, Defendant-appellee, 860 F.2d 1081 (6th Cir. 1988)

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U.S. Court of Appeals for the Sixth Circuit - 860 F.2d 1081 (6th Cir. 1988)

Oct. 21, 1988


Before KEITH, RALPH B. GUY Jr. and RYAN, Circuit Judges.


ORDER

This pro se federal prisoner requests the appointment of counsel in this appeal from the district court's order dismissing his civil rights complaint without prejudice. The appeal has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon consideration of the record and the briefs, the panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

In a complaint filed pursuant to the doctrine announced in Bivens v. Six Unknown Named Federal Narcotics Agents, 403 U.S. 388 (1971), plaintiff Christopher Wallace claimed that defendants refused to provide him adequate medical treatment in violation of his eighth amendment rights. He complained that defendants, with knowledge of his preexisting disability, gave him an improper work assignment, that he suffered additional injuries, and that defendants refused to provide proper treatment. Wallace sought monetary, declaratory, and injunctive relief, including immediate release from prison.

The matter was referred to a magistrate who determined that Wallace failed to exhaust administrative remedies. The magistrate recommended that the complaint should be dismissed without prejudice to Wallace's right to refile his claim. Wallace objected, asserting that his attempts to exhaust had been refused. Upon review in light of the objections, the district court adopted the magistrate's recommendation and dismissed the complaint.

Upon review, we conclude that the district court properly dismissed Wallace's complaint for his failure to exhaust administrative remedies. See Davis v. Keohane, 835 F.2d 1147, 1148 (6th Cir. 1987). Moreover, dismissal was proper because Wallace did not provide specific allegations to support his claim of an attempt to exhaust. See Morgan v. Church's Fried Chicken, 829 F.2d 10, 12 (6th Cir. 1987).

Accordingly, the request for appointed counsel is denied. We hereby affirm the district court's order of dismissal without prejudice to plaintiff's right to refile. Rule 9(b) (5), Rules of the Sixth Circuit.