Unpublished Dispositionrobert D. Marsch, Plaintiff-appellant, v. Phil Bozarth; Merle Quinn; Anita Potts; Donna E. Wilson;jim Wheeler; Ronnie C. Dortch; Gene Hawkins,defendants-appellees, 894 F.2d 407 (6th Cir. 1990)

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U.S. Court of Appeals for the Sixth Circuit - 894 F.2d 407 (6th Cir. 1990) Jan. 30, 1990

Before WELLFORD and RALPH B. GUY, Jr., Circuit Judges, and ENGEL, Senior Circuit Judge.


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 briefs and record, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

Robert D. Marsch appeals the dismissal without prejudice of his civil rights action filed under 42 U.S.C. § 1983 as frivolous pursuant to 28 U.S.C. § 1915(d). Marsch alleged that the defendant local officials lost certain evidence which deprived him of a fair trial and resulted in his conviction on charges of murder and arson. The district court ultimately dismissed plaintiff's claims without prejudice to his right to refile if he establishes the illegality of his convictions through habeas corpus. Upon consideration, we conclude that plaintiff's claims were properly dismissed.

Despite plaintiff's contention on appeal, a resolution of the merits of plaintiff's claims would imply a ruling involving the legality of his convictions. Under these circumstances, this court has determined that dismissal without prejudice is appropriate. Hadley v. Werner, 753 F.2d 514 (6th Cir. 1985) (per curiam); cf. Feaster v. Miksch, 846 F.2d 21, 24 (6th Cir.), cert. denied, 109 S. Ct. 148 (1988).

Accordingly, the judgment of the district court is affirmed. Rule 9(b) (5), Rules of the Sixth Circuit.