Robert F. Zurla, Plaintiff-appellant, v. State of Tennessee, Criminal Justice Complex State Courtsystem, Defendant-appellee, 4 F.3d 995 (6th Cir. 1993)

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U.S. Court of Appeals for the Sixth Circuit - 4 F.3d 995 (6th Cir. 1993)

Aug. 18, 1993


Before MERRITT, Chief Judge, and BOGGS, Circuit Judge, and ENGEL, Senior Circuit Judge.


ORDER

Robert F. Zurla is a former Tennessee prisoner who appeals pro se from a district court judgment dismissing his civil rights case filed under 42 U.S.C. § 1983. His appeal has been referred to a panel of this court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination, the panel unanimously agrees that oral argument is not needed in this case. Fed. R. App. P. 34(a).

Zurla alleged that he was held for three months in the Shelby County Jail and then forced to enter a plea of nolo contendere to undisclosed charges. The district court construed the complaint as being brought solely against the State of Tennessee. On June 15, 1992, the court dismissed the complaint pursuant to 28 U.S.C. § 1915(d). The court found that Zurla's claim for monetary relief was barred by the Eleventh Amendment and that the states were not persons who could be sued for damages under Sec. 1983. Zurla did not make a clear request for equitable relief in his complaint. Nevertheless, the court also found that he had not shown exhaustion of his available state court remedies, as required for habeas corpus relief under 28 U.S.C. § 2254(b). It is from this judgment that Zurla now appeals. His brief on appeal contains a request for counsel.

The district court's dismissal of Zurla's complaint under 28 U.S.C. § 1915(d) is reviewed for an abuse of discretion on appeal. See Denton v. Hernandez, 112 S. Ct. 1728, 1734 (1992). A complaint may be dismissed under Sec. 1915(d) if it lacks an arguable basis in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). Upon review, we conclude that Zurla has not demonstrated an abuse of discretion in the instant case, and affirm the district court's judgment for the reasons stated in its Memorandum Opinion entered June 15, 1992. In addition, we note that Zurla's correspondence with this court indicates that he no longer meets the custody requirement of 28 U.S.C. § 2254(a).

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