Unpublished Dispositiondewayne Warthen, Plaintiff-appellant, v. O.i. White, Warden; Patricia Shingles; Jane and John Does,defendants-appellees, 895 F.2d 1415 (6th Cir. 1990)

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US Court of Appeals for the Sixth Circuit - 895 F.2d 1415 (6th Cir. 1990)

Feb. 13, 1990


Before NATHANIEL R. JONES and MILBURN, Circuit Judges, and CARL B. RUBIN, Chief District 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 record and the briefs, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

DeWayne Warthen, an inmate at the Federal Correctional Institution, Memphis, Tennessee, filed an action seeking declaratory and injunctive relief in connection with the alleged deprivation of personal legal papers and effects. The district court sua sponte dismissed the case as frivolous under 28 U.S.C. § 1915(d) and this appeal followed. The named defendants and the plaintiff have submitted briefs, Warthen proceeding without counsel.

Upon consideration, we find that the dismissal was proper. A complaint is frivolous under Sec. 1915(d) if it lacks an arguable basis in law or fact. Neitzke v. Williams, 109 S. Ct. 1827, 1833 (1989). Warthen's complaint, styled as an "Emergency Petition for Writ of Mandamus," contains vague, conclusory allegations of unconstitutional conduct. These allegations cannot support an action under any construction of the initial pleading. Gutierrez v. Lynch, 826 F.2d 1534, 1538-39 (6th Cir. 1987).

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

 *

The Honorable Carl B. Rubin, Chief U.S. District Judge for the Southern District of Ohio, sitting by designation