Vivian Janet Bowman, Plaintiff-appellant, v. Mike Bowling, Defendant-appellee, 81 F.3d 160 (6th Cir. 1996)

Before: KENNEDY and MOORE, Circuit Judges, and WELLS, District Judge.^* 

ORDER

Vivian Janet Bowman appeals a district court judgment dismissing her complaint filed under 42 U.S.C. § 1983 as frivolous pursuant to 28 U.S.C. § 1915(d). 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).

Bowman filed her complaint in the district court alleging that the defendant Kentucky state legislator gave her permission to speak at a meeting of a legislative judicial committee, but adjourned the meeting before she could speak. Plaintiff alleged that defendant permitted her to speak to committee members following the meeting, but then slandered her and directed someone to grab her as she was speaking. Plaintiff sued defendant in an unspecified capacity and sought $300,000 in unspecified damages. The magistrate judge recommended that the complaint be dismissed sua sponte as frivolous, and plaintiff filed objections. The district court adopted the magistrate judge's recommendation and dismissed the complaint.

Upon consideration, the judgment of the district court is affirmed because the district court did not abuse its discretion in dismissing plaintiff's complaint. See Denton v. Hernandez, 504 U.S. 25, 33 (1992). A complaint is frivolous within the meaning of 28 U.S.C. § 1915(d) where plaintiff has not presented a claim with an arguable or rational basis in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Lawler v. Marshall, 898 F.2d 1196, 1198 (6th Cir. 1990). In determining whether a claim is frivolous under § 1915(d), a court need not "accept as 'having an arguable basis in fact' all allegations that cannot be rebutted by judicially noticeable facts." Denton, 504 U.S. at 32 (quoting Neitzke, 490 U.S. at 325). However, "plaintiff's factual allegations must be weighted in favor of plaintiff." Id. Here, the district court did not abuse its discretion in dismissing plaintiff's complaint because plaintiff's claims are not cognizable under § 1983, see Flagg Bros. v. Brooks, 436 U.S. 149, 155-57 (1978); Brotherton v. Cleveland, 923 F.2d 477, 479 (6th Cir. 1991), and no other jurisdictional basis exists.

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