Unpublished Dispositionsteven Eric Williams, Plaintiff-appellant, v. Michigan Department of Corrections, Robert Brown, Jr.,director, Defendants-appellees, 935 F.2d 271 (6th Cir. 1991)

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US Court of Appeals for the Sixth Circuit - 935 F.2d 271 (6th Cir. 1991) June 13, 1991

Before NATHANIEL R. JONES and ALAN E. NORRIS, Circuit Judges, and JOINER, Senior 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, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

This pro se Michigan prisoner appeals the district court's judgment dismissing his civil rights complaint filed pursuant to 42 U.S.C. § 1983. Additionally, he requests the appointment of counsel. In his complaint, plaintiff alleged that the Ionia Riverside Correctional Facility failed to properly report, process and prosecute his escape charge. Plaintiff sought to have the escape charge dismissed, to have his disciplinary credits restored and to be returned to the proper level of confinement.

A magistrate determined that plaintiff's complaint challenged the "fact or duration of his physical imprisonment, and in essence, the relief he seeks is a determination that he is entitled to a speedier release from his imprisonment." The magistrate concluded that plaintiff's claims were not actionable under 42 U.S.C. § 1983. The magistrate accordingly recommended that plaintiff's complaint be dismissed without prejudice to plaintiff's right to raise his claims by way of a petition for a writ of habeas corpus. After reviewing plaintiff's objections, the district court adopted the magistrate's recommendation and dismissed the complaint as frivolous pursuant to 28 U.S.C. § 1915(d). This appeal followed.

Upon review, we conclude that dismissal was proper because plaintiff's complaint essentially concerns the fact or duration of his confinement and may not be pursued under 42 U.S.C. § 1983. See McCune v. City of Grand Rapids, 842 F.2d 903, 908-09 (6th Cir. 1988); Hadley v. Werner, 753 F.2d 514, 516 (6th Cir. 1985) (per curiam). An attack upon the fact or duration of confinement must be pursued through a habeas corpus proceeding, see Preiser v. Rodriguez, 411 U.S. 475, 500 (1973), after exhuastion of state court remedies. Pillette v. Foltz, 824 F.2d 494, 496 (6th Cir. 1987). Plaintiff's remaining claims on appeal will not be addressed for the reasons stated above.

Accordingly, the request for counsel is denied. The district court's judgment is affirmed. Rule 9(b) (3), Rules of the Sixth Circuit.

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The Honorable Charles W. Joiner, Senior U.S. District Judge for the Eastern District of Michigan, sitting by designation