Unpublished Dispositionjames C. Leveye, Jr., Plaintiff-appellant, v. Barry Keathly; Ross Rexroad; Sandra Rexroad; Robertgarlock, Detective; David Beard, Officer,defendants-appellees, 889 F.2d 1087 (6th Cir. 1989)

ORDER

James C. Leveye, Jr., a pro se Tennessee prisoner, appeals the district court's order dismissing his civil rights action filed under 42 U.S.C. § 1983. 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 the briefs, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

Seeking injunctive, declaratory and monetary relief, Leveye, who was arrested in Williamson County, Tennessee, sued various defendants claiming they violated his right to be free from unreasonable arrests and unreasonable searches and seizures. He also claimed the defendants violated his rights under Miranda v. Arizona, 384 U.S. 436 (1966). The district court dismissed the complaint without prejudice pursuant to Hadley v. Werner, 753 F.2d 514, 516 (6th Cir. 1985) (per curiam). This appeal followed.

Upon consideration, we conclude this case must be remanded for further consideration by the district court.

Initially, we note that the Williamson County Circuit Court in April 1989 affirmed Leveye's jury convictions for vehicular burglary, grand larceny, petty larceny, felonious possession of explosives and for being a habitual criminal for which he received a life sentence. He also does not appear to have an appeal pending in the state courts regarding these convictions.

Accordingly, we hereby vacate the district court's judgment to the extent it dismissed Leveye's claim for unlawful arrest, and unlawful search and seizure for which he sought monetary damages, and remand this claim for further proceedings on the merits. Feaster v. Miksch, 846 F.2d 21, 23 (6th Cir.), cert. denied, 109 S. Ct. 148 (1988); Rule 9(b) (6), Rules of the Sixth Circuit. However, we affirm the dismissal of Leveye's claim asserting a Miranda violation without prejudice to his right to assert the claim if and when he obtains a writ of habeas corpus on this claim under 28 U.S.C. § 2254 following exhaustion of his state court remedies. Hadley, 753 F.2d at 516; Rule 9(b) (5), Rules of the Sixth Circuit. Finally, we also affirm the dismissal, and hereby modify it to be with prejudice, to the extent it dismissed Leveye's claims seeking injunctive and declaratory relief as such relief is available in the state courts. Cf. Watts v. Burkhart, 854 F.2d 839, 846-49 (6th Cir. 1988); Rule 9(b) (5), Rules of the Sixth Circuit.