Unpublished Dispositionlonnie Miller, Plaintiff-appellant, v. Donal Campbell, Danny Scott, Jane Weeks, Ron Bishop, Lindamiller, Ed Hoover, Donna Blackburn, Stephaniechivers, Gretchen Faulstich, Defendants-appellees, 883 F.2d 75 (6th Cir. 1989)

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US Court of Appeals for the Sixth Circuit - 883 F.2d 75 (6th Cir. 1989) Aug. 14, 1989

Before BOYCE F. MARTIN, Jr., WELLFORD and MILBURN, Circuit Judges.


ORDER

This pro se Tennessee prisoner appeals the district court's order dismissing his civil rights action as frivolous under 28 U.S.C. § 1915(d). 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 under 42 U.S.C. § 1983, Lonnie Miller claimed that defendants, a Tennessee prison warden, two prison employees, and six members of the Tennessee parole board, deprived him of equal protection and due process and subjected him to cruel and unusual punishment. Miller also alleged a retaliatory transfer in violation of his fourteenth amendment rights. He sought injunctive, declaratory and monetary relief.

The district court granted Miller's motion to proceed in forma pauperis but, applying the standard of Malone v. Colyer, 710 F.2d 528 (6th Cir. 1983), dismissed the complaint as frivolous. Miller filed a timely motion to vacate judgment under Fed. R. Civ. P. 59(e); the motion was denied.

Upon review we conclude that Miller's complaint is not frivolous within the meaning of 28 U.S.C. § 1915(d). A complaint is frivolous where it lacks an arguable basis either in law or fact. Neitzke v. Williams, 109 S. Ct. 1827, 1832-33 (1989). A complaint may not be frivolous even though it may otherwise be subject to dismissal for failure to state a claim under Fed. R. Civ. P. 12(b) (6). Id. at 1831. Claims which lack an arguable basis in law include claims of infringement of a legal interest which clearly does not exist; claims which lack an arguable basis in fact include claims describing fantastic or delusional scenarios. Id. at 1832. Miller's claims, though tenuous, do not lack an arguable basis in law or fact.

Accordingly, the district court's judgment is hereby vacated and the case remanded to the district court for further proceedings. Rule 9(b) (6), Rules of the Sixth Circuit.