Unpublished Dispositionlarry Darnell Ayers, Plaintiff-appellant, v. Stephen Norris; Brandon Lewis Powers; Doris K. Hinds;betty Stiddum; H.r. Sonny Wise, Defendants-appellees, 898 F.2d 153 (6th Cir. 1990)

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US Court of Appeals for the Sixth Circuit - 898 F.2d 153 (6th Cir. 1990) March 14, 1990

Before KENNEDY and RYAN, Circuit Judges, and GEORGE C. SMITH, District Judge.* 

ORDER

This appeal has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. 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, Larry Darnell Ayers, tendered an application for leave to proceed in forma pauperis and a complaint pursuant to 42 U.S.C. §§ 1983 and 1985 in the District Court for the Middle District of Tennessee. In support of his request for a declaratory judgment, injunctive relief and monetary damages, he stated that he was incarcerated in a Tennessee prison pursuant to his convictions for assault with intent to commit robbery and three counts of robbery accomplished by use of a deadly weapon. Plaintiff further alleged that defendants, all of whom were employees of the Tennessee Department of Corrections or the Tennessee Board of Paroles, had permitted the denial of his request for release on parole based upon an incorrect calculation of his sentence. After review of the complaint, the district court granted the application for pauper status and referred the complaint to a magistrate for possible disposition for frivolity under 28 U.S.C. § 1915(d). The magistrate determined that plaintiff's claims were subject to dismissal under that statute as they had already been litigated in a state action for a writ of mandamus. As that proceeding had resulted in an order in which the state court determined that plaintiff's sentence had been properly calculated, the magistrate concluded that res judicata precluded the relitigation of those claims in a federal civil rights action. Despite plaintiff's objections, the district court agreed and dismissed the complaint pursuant to 28 U.S.C. § 1915(d). Plaintiff then filed this appeal.

Based upon a careful review of the record, the court concludes that the district court did not err in dismissing the complaint. Neitzke v. Williams, 109 S. Ct. 1827, 1831 (1989). Accordingly, the district court's final order is hereby affirmed. Rule 9(b) (5), Rules of the Sixth Circuit.

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The Honorable George C. Smith, U.S. District Judge for the Southern District of Ohio, sitting by designation