Unpublished Dispositionhoward John Lee Loss, May Webster, Plaintiffs-appellants, v. Thomas J. Eggleston, Judge Probate Court, Anita Scott,harold M. Scott, Bruce M. Youker, Referee Probate Ct.,elizabeth A. Weaver, P.j., Gary R. Mcdonald, P.j., Williamr. Peterson, Defendants-appellees, 877 F.2d 62 (6th Cir. 1989)

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US Court of Appeals for the Sixth Circuit - 877 F.2d 62 (6th Cir. 1989) June 19, 1989

Before: KENNEDY, RALPH B. GUY, Jr. and ALAN E. NORRIS, Circuit Judges.


Plaintiffs, proceeding pro se, move for habeas corpus relief on appeal from the district court's judgment dismissing their consolidated civil actions. The appeal has been referred to a panel pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the certified record and briefs, the panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

Plaintiffs sought monetary, injunctive and declaratory relief against Michigan judges, a referee and two individuals, for the wrongful deprivation of their child and child custody rights. The district court granted defendant Judge Eggleston's and Referee Youker's motion to dismiss, and dismissed the action as frivolous under 28 U.S.C. § 1915(d) as to the remaining defendants. On appeal, the plaintiffs move for habeas corpus relief to obtain custody of their child and argue that the district court erred in failing to grant prospective relief.

Because the plaintiffs are essentially seeking the return of their child, we construe their suit as one seeking habeas corpus relief under 28 U.S.C. § 2254. As such, the suit was properly subject to dismissal for reasons other than those stated by the district court. The habeas writ may not be used to challenge state custody orders which have the effect of involuntarily removing children from the custody of their parents. Lehman v. Lycoming Cty. Children's Servs., 458 U.S. 502, 514-16 (1982).

Accordingly, plaintiffs' motion for habeas relief is denied, and the judgment of the district court is affirmed. Rule 9(b) (5), Rules of the Sixth Circuit.