OpenJurist

59 F3d 170 Graham v. Hawk

Johnny Ray GRAHAM, Plaintiff-Appellant,
v.
Kathleen HAWK, Director, Federal Bureau of Prisons; Bob
Guzik, Warden, Federal Correctional Institution; United
States District Court, Southern District of Ohio Probation
Office, Defendants-Appellees.

No. 94-6299.

United States Court of Appeals, Sixth Circuit.

June 15, 1995.

59 F.3d 170
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.

1

Before: KEITH and BATCHELDER, Circuit Judges, and ROSEN, District Judge.*

ORDER

2

This pro se federal prisoner appeals a district court judgment dismissing his civil suit filed pursuant to the Privacy Act, 5 U.S.C. Sec. 552a. 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).

3

Seeking monetary damages, Johnny Ray Graham sued the Director of the Bureau of Prisons (Kathleen Hawk), the Warden at FCI Memphis (Bob Guzik), and the Probation Office for the Southern District of Ohio. Graham alleged that the Bureau of Prisons (BOP) maintains an inaccurate presentence investigation report (PSI) on him that contains information that he threatened persons connected with his trial. Alternatively, Graham sought a writ of mandamus.

4

The district court concluded that Graham's Privacy Act claim was frivolous pursuant to 28 U.S.C. Sec. 1915(d) and dismissed the complaint. To the extent the complaint could be construed as a petition for a writ of habeas corpus, the district court concluded that Graham was not entitled to any relief. The district court also concluded that Graham's alternative request for a writ of mandamus was meritless.

5

In his timely appeal, Graham seeks in forma pauperis status and reasserts the same claims set forth in the district court.

6

This court reviews a judgment dismissing a complaint as frivolous under Sec. 1915(d) for an abuse of discretion. Denton v. Hernandez, 112 S.Ct. 1728, 1734 (1992). A complaint permitted to be filed without prepayment of costs under 28 U.S.C. Sec. 1915(a), may be dismissed as frivolous only when the plaintiff fails to present any claim with an arguable or rational basis in law or fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). Claims that lack an arguable or rational 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; claims that lack an arguable or rational basis in fact describe fantastic or delusional scenarios. Id. at 327-28.

7

Upon review, we conclude that the district court did not abuse its discretion. Graham's Privacy Act claim lacks an arguable basis in law for the reasons set forth in the district court's order of dismissal entered on June 23, 1994.

8

Accordingly, in forma pauperis status is granted for the sole purpose of this appeal, and the district court's judgment is affirmed pursuant to Rule 9(b)(3), Rules of the Sixth Circuit.

*

The Honorable Gerald E. Rosen, United States District Judge for the Eastern District of Michigan, sitting by designation