OpenJurist

1 F3d 1241 Luster v. L Ewell

1 F.3d 1241

Jerry L. LUSTER, Plaintiff-Appellant,
v.
Gerald L. EWELL, Sr.; Claus Thormaehlen; Kenneth Shelton,
Defendants-Appellees.

No. 92-6494.

United States Court of Appeals, Sixth Circuit.

Aug. 6, 1993.

NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.

Before: KEITH and KENNEDY, Circuit Judges, and CONTIE, Senior Circuit Judge.

ORDER

1

Jerry L. Luster, a pro se Tennessee prisoner, appeals a district court order dismissing his civil rights complaint as frivolous pursuant to 28 U.S.C. Sec. 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, the panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).

2

Seeking monetary and declaratory relief, Luster sued his attorney, a Tennessee state judge, and a county prosecutor for essentially subjecting him to an illegal sentence. The defendants were sued in their individual capacities. The district court granted Luster's motion to proceed in forma pauperis and then dismissed the case as frivolous pursuant to Sec. 1915(d).

3

In his timely appeal, Luster argues that the defendants are not entitled to immunity because they were sued in their individual capacities. He requests oral argument.

4

Dismissal of a complaint pursuant to 28 U.S.C. Sec. 1915(d) is reviewed under the abuse of discretion standard. See Denton v. Hernandez, 112 S.Ct. 1728, 1734 (1992). The district court may sua sponte dismiss a complaint as frivolous if it lacks an arguable 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). Claims that lack an arguable basis in law include claims for which the defendants are clearly entitled to immunity and claims of infringement of a legal interest which clearly does not exist. Neitzke, 490 U.S. at 327-28; Lawler, 898 F.2d at 1199.

5

Upon review, we conclude that the district court did not abuse its discretion in dismissing Luster's complaint as frivolous. See Denton, 112 S.Ct. at 1734. Accordingly, we deny the request for oral argument and affirm the district court's order. Rule 9(b)(3), Rules of the Sixth Circuit.