Kerney R. Troyer, Plaintiff-appellant, v. Joseph M. Underwood, et al., Defendants-appellees, 51 F.3d 273 (6th Cir. 1995)

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US Court of Appeals for the Sixth Circuit - 51 F.3d 273 (6th Cir. 1995) April 4, 1995

Before: KENNEDY and MILBURN, Circuit Judges, and WISEMAN, District Judge.* 

ORDER

Kerney R. Troyer appeals a district court judgment dismissing his civil rights complaint as frivolous pursuant to 28 U.S.C. § 1915(d). The 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).

Troyer filed his complaint under 42 U.S.C. § 1983 in the district court alleging that the defendant employees of the Cass County, Michigan, Sheriff's Department negligently permitted two fellow pretrial detainees to assault him while they were being held in the Cass County Jail. Plaintiff sued defendants in their individual capacities and sought compensatory and punitive damages. The district court dismissed the complaint as frivolous, and this timely appeal followed. Plaintiff has paid the appellate filing fee.

On appeal, plaintiff contends that the district court abused its discretion in dismissing his complaint sua sponte as frivolous. Upon consideration, the judgment is affirmed for the reasons stated by the district court in its opinion filed August 31, 1994. Generally, this court reviews the dismissal of a complaint as frivolous only for an abuse of the district court's discretion. Denton v. Hernandez, 112 S. Ct. 1728, 1734 (1992). Here, the district court properly determined that plaintiff alleged no facts rising to the level of a constitutional deprivation. See Farmer v. Brennan, 114 S. Ct. 1970, 1976-77 (1994). Finally, plaintiff's contention on appeal that the district court erred in dismissing his complaint sua sponte lacks merit because the district court specifically dismissed plaintiff's complaint as frivolous pursuant to Sec. 1915(d). See Harris v. Johnson, 784 F.2d 222, 224 (6th Cir. 1986).

Accordingly, the judgment of the district court is affirmed. Rule 9(b) (3), Rules of the Sixth Circuit.

 *

The Honorable Thomas A. Wiseman, Jr., United States District Judge for the Middle District of Tennessee, sitting by designation