Unpublished Dispositionsylvester Oliver, Plaintiff-appellant, v. Lorain County, Ohio, et al., Defendants-appellees, 902 F.2d 34 (6th Cir. 1990)

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U.S. Court of Appeals for the Sixth Circuit - 902 F.2d 34 (6th Cir. 1990)

May 9, 1990


Before WELLFORD and BOGGS, Circuit Judges, and HORACE W. GILMORE, District Judge.* 

ORDER

Plaintiff, Sylvester Oliver, appeals an order of the district court which dismissed his civil rights action without prejudice. 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 at the Marion Correctional Institution, tendered an application for leave to proceed in forma pauperis and a complaint pursuant to 42 U.S.C. § 1983 in the District Court for the Northern District of Ohio. In support of his request for monetary damages and injunctive relief, he alleged that defendants, all of whom had been involved in his prosecution and conviction for an unspecified state offense or offenses, had conspired to achieve that result in violation of his civil rights. After review of those allegations, the district court granted the request for pauper status, but declined to serve the complaint upon defendants. Instead, the district court determined that plaintiff's claims were frivolous and ordered their dismissal without prejudice pursuant to 28 U.S.C. § 1915(d). Petitioner then filed this appeal.

After a careful review of the record, this court has concluded that the district court did not err in dismissing the complaint for reason of frivolity under 28 U.S.C. § 1915(d). Neitzke v. Williams, 109 S. Ct. 1827, 1831 (1989). Plaintiff can not presently maintain a civil rights action based upon the allegation that defendants conspired to achieve his illegal conviction in state court unless he has first successfully adjudicated those claims in a proceeding for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. See Hadley v. Werner, 753 F.2d 514, 516 (6th Cir. 1985) (per curiam).

Accordingly, the motion for appointment of counsel is denied and the district court's final order is hereby affirmed pursuant to Rule 9(b) (5), Rules of the Sixth Circuit.

 *

The Honorable Horace W. Gilmore, U.S. District Judge for the Eastern District of Michigan, sitting by designation