Unpublished Dispositionray Darris Thompson, Plaintiff-appellant, v. Stephen Norris; Donal Campbell; Sgt. R. Starbuck; Dalejohnson; James Allen, Defendants-appellees. (89-5635)ray Darris Thompson, Plaintiff-appellant, v. Sgt. R. Starbuck; W. Morris; Dale Johnson,defendants-appellees. (89-5752), 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. 16, 1990

Before BOYCE F. MARTIN, Jr. and RYAN, Circuit Judges, and BAILEY BROWN, Senior Circuit Judge.


ORDER

In these consolidated appeals, plaintiff, Ray Darris Thompson, seeks review of two separate orders of the district court which dismissed his two civil rights actions. He now moves for the appointment of counsel. Upon review of the record and the briefs, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

Plaintiff, an inmate in the Turney Center Industrial Prison, filed two complaints pursuant to 42 U.S.C. § 1983 in the District Court for the Middle District of Tennessee. In the first of those cases, no. 88-421 (Sixth Cir. Case No. 89-5752), plaintiff sought declaratory, injunctive, and monetary relief based upon the allegation that defendants, all of whom were members of the Turney Center Disciplinary Board, had violated his right to due process by failing to provide him with an adequate written statement concerning the outcome of a disciplinary proceeding against him. Plaintiff's second cause of action, case no. 89-429 (Sixth Cir. Case No. 89-5635), advanced similar claims regarding another disciplinary proceeding against him, but also included an allegation that further due process deprivations had occurred when his appeal from the disciplinary board's decision was denied. The district court referred both complaints to a magistrate who recommended that they be dismissed for reason of frivolity under 28 U.S.C. § 1915(d). Despite plaintiff's objections, the district court adopted the magistrate's recommendations and dismissed the complaints. Plaintiff then filed these appeals which have been consolidated for disposition.

A district court may properly dismiss a complaint for reason of frivolity only if it can conclude that the plaintiff's claims lack an arguable basis in law or fact. Neitzke v. Williams, 109 S. Ct. 1827, 1831 (1989). The district court properly applied that standard to dismiss the complaint in case no. 89-5635. In particular, the record in that case includes a copy of the hearing summary compiled by defendants after plaintiff's disciplinary hearing. That document indicates that plaintiff was fully informed of the board's decision that he had committed a disciplinary infraction, the evidence upon which the board had relied in reaching that decision, the penalty imposed and the reasons underlying that action. Moreover, plaintiff's prosecution of an administrative appeal of the board's decision in that case demonstrates that he was served with a copy of the hearing summary. Accordingly, plaintiff's claim that the disciplinary proceeding which is the subject of case no. 89-5635 had been conducted in violation of his due process rights as established in Wolff v. McDonnell, 418 U.S. 539, 564-65 (1974), clearly lacks any basis in fact. The district court did not err in dismissing the complaint pursuant to 28 U.S.C. § 1915(d).

Likewise, review of the record in case no. 89-5752 leads the court to conclude that plaintiff's claims in that case are also frivolous within the meaning of Neitzke, 109 S. Ct. at 1831. In that appeal, plaintiff alleged that a second prison disciplinary hearing had been conducted in violation of his right to due process on account of the disciplinary board's failure to provide him with an adequate written summary of its deliberations. Even if those factual allegations were assumed to be true, plaintiff's claims still lack an arguable basis in law as the record discloses that he was ultimately afforded due process during the course of the disciplinary proceeding. Specifically, plaintiff prosecuted an administrative appeal from his conviction for misconduct which concluded in the vacatins of the board's finding of guilt and the dismissal of the charge against him. Consequently, plaintiff experienced no harm as a result of the second disciplinary hearing that would give rise to a cause of action under 42 U.S.C. § 1983. The district court therefore did not err in dismissing the complaint in case no. 89-5752.

For the foregoing reasons, the motion for appointment of counsel is denied and the district court's final orders in case nos. 89-5635 and 89-5752 are hereby affirmed. Rule 9(b) (5), Rules of the Sixth Circuit.