Unpublished Dispositionlynn Richard Norton, Plaintiff-appellant, v. Tennessee Department of Corrections, Bill Kelling, Davidmills, Charles Butturini, Defendants-appellees, 924 F.2d 1059 (6th Cir. 1991)

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U.S. Court of Appeals for the Sixth Circuit - 924 F.2d 1059 (6th Cir. 1991)

Feb. 4, 1991


Before BOYCE F. MARTIN, Jr., KRUPANSKY and ALAN E. NORRIS, Circuit Judges.


ORDER

Lynn Richard Norton, a Tennessee state prisoner, requests the appointment of counsel on appeal from the district court's dismissal of his civil rights complaint filed under 42 U.S.C. § 1983. The 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 appellant's briefs, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

Norton sued the Tennessee Department of Corrections and several of its employees for monetary, declaratory and injunctive relief, alleging that he had not been given proper credit for jail time prior to his sentencing, nor had he received behavior credits for the time in question. The district court sua sponte dismissed the case as frivolous and denied Norton's motion for reconsideration. Norton then filed two duplicative notices of appeal. The two resulting case numbers have been consolidated.

Upon review, this court concludes that the complaint was properly dismissed as frivolous, as it lacks an arguable basis in law or fact. 28 U.S.C. § 1915(d); see Neitzke v. Williams, 490 U.S. 319, 109 S. Ct. 1827, 1831 (1989). Norton is precluded from filing a civil rights action on this claim, as it challenges the duration of his confinement and thus may only be raised by way of a petition for writ of habeas corpus following the exhaustion of state remedies. See Preiser v. Rodriguez, 411 U.S. 475, 490 (1973). Norton remains free to refile for monetary relief under 42 U.S.C. § 1983 if and when he obtains habeas relief. See Hadley v. Werner, 753 F.2d 514, 516 (6th Cir. 1985) (per curiam).

Accordingly, the request for counsel is denied, case no. 90-5351 is dismissed as duplicative, and the dismissal of this case is affirmed in case no. 90-5300. Rule 9(b) (5), Rules of the Sixth Circuit.