Unpublished Dispositionrobert Richard, Plaintiff-appellant, v. the State of Michigan, L. Brooks Patterson, Oakland County,defendants-appellees, 875 F.2d 867 (6th Cir. 1989)

ORDER

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 appellant's brief, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

Robert Richard moves to strike the appellee's brief and appeals from the district court's judgment dismissing his 42 U.S.C. § 1983 prisoner civil rights suit as frivolous pursuant to 28 U.S.C. § 1915(d). Richard claimed that the prosecuting attorney maliciously imposed a detainer on him which deprived him of benefits while he was imprisoned; that the prosecutor, the State of Michigan, and Oakland County negligently failed to remove the detainer; and that he was improperly imprisoned as a habitual offender. Richard sought monetary relief. The district court dismissed the complaint as frivolous, and because the prosecutor and state were immune from suit. Richard raises the same arguments on appeal.

Upon consideration, we affirm. Richard could prove no set of facts which would entitle him to relief. See Malone v. Colyer, 710 F.2d 258, 261 (6th Cir. 1983). Richard failed to allege that he was deprived of a right secured by the federal Constitution or laws of the United States. Furthermore, he cannot state a claim against the defendants on a negligence theory. Mere negligence is not actionable under Sec. 1983. Chesney v. Hill, 813 F.2d 754, 755 (6th Cir. 1987) (per curiam). Moreover, Richard failed to state a claim against the prosecutor. The prosecutor is absolutely immune from damages in this Sec. 1983 suit because he was exercising judicial or quasi-judicial discretion in imposing the detainer. See Imbler v. Pachtman, 424 U.S. 409, 430 (1976). The State of Michigan is likewise immune from this action for damages. See generally Welch v. State Dep't of Highways and Public Transp., 107 S. Ct. 2941, 2945-46 (1987). Richard presented no evidence that the state waived its immunity.

Accordingly, the district court's judgment is affirmed. Rule 9(b) (5), Rules of the Sixth Circuit. The motion to strike the appellee's brief is hereby denied.