Unpublished Dispositiontommy Wayne Myers, Ola Myers, Plaintiffs-appellants, v. the Ones Who Got over $300 from the Sevier County Bank,defendants-appellees, 895 F.2d 1414 (6th Cir. 1990)

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US Court of Appeals for the Sixth Circuit - 895 F.2d 1414 (6th Cir. 1990)

Feb. 12, 1990


Before MERRITT, Chief Judge, NATHANIEL R. JONES and RYAN, Circuit Judges.


ORDER

Tommy Wayne Myers and Ola Myers, pro se Tennessee litigants, appeal the district court's order sua sponte dismissing their civil rights complaint 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 appellants' brief, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

Seeking monetary relief, plaintiffs alleged that the unnamed defendants removed over $349 from their account at the Sevier County Bank. Plaintiffs further alleged that the unnamed defendants gave both of them gangrene. The district court dismissed the complaint as frivolous pursuant to 28 U.S.C. § 1915(d). This appeal follows.

Upon consideration, we conclude that the district court properly dismissed the suit as frivolous as plaintiffs' claims lack an arguable basis in law. See Neitzke v. Williams, 109 S. Ct. 1827, 1831 (1989).

To establish a right of relief under 42 U.S.C. § 1983, a plaintiff must plead and prove that 1) he was deprived of a right secured by the Constitution or laws of the United States; and 2) that defendant deprived him of such right while acting under color of state law. Jones v. Duncan, 840 F.2d 359, 361-62 (6th Cir. 1988). Plaintiffs' suit is baseless within the meaning of Neitzke because the defendants clearly did not deprive the plaintiffs of any constitutional right while acting under color of state law. The suit was thus properly dismissed.

Accordingly, the district court's order is hereby affirmed. Rule 9(b) (5), Rules of the Sixth Circuit.