772 F2d 905 Stanley Lloyd Boswell v. Richard D Walter
772 F.2d 905
STANLEY LLOYD BOSWELL, PLAINTIFF-APPELLANT,
RICHARD D. WALTER; JOSEPH W. GREGORICH; AND DARRYL BENGRY,
United States Court of Appeals, Sixth Circuit.
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.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: ENGEL, MERRITT and KENNEDY, Circuit Judges.
This pro se Michigan State prisoner moves the Court to appoint counsel in his appeal from a district court judgment summarily dismissing his civil rights complaint filed under 42 U.S.C Sec. 1983. Seeking monetary damages from three prison officials, the plaintiff alleged that he has not been allowed to call his mother and his attorney for seven months. Plaintiff sought to make the telephone calls after he learned by reading his mail that his mother was sick and that his attorney wanted to talk to him about an unspecified appeal.
After allowing the plaintiff to file his suit in forma pauperis, the district court dismissed the suit for being totally frivolous under 28 U.S.C. Sec. 1915(d).
Upon review of the cause, this Court concludes that the plaintiff's suit was properly dismissed due to the plaintiff's failure to allege a deprivation of a right protected under the federal Constitution. Cf. Bird v. Summit County Ohio, 730 F.2d 442 (6th Cir. 1984) (per curiam). The plaintiff has been restricted to use the telephone only in cases of emergency. In addition, plaintiff has not alleged that he has been denied other reasonable access to his family and attorney, i.e., correspondence through the mail; and, he has also not alleged that he was denied the use of the phone for a true emergency. Under these circumstances, it is clear that the plaintiff has failed to allege a deprivation of a right protected under the Constitution. See Bell v. Wolfish, 441 U.S. 520, 562 (1979); Pell v. Procunier, 417 U.S. 817, 823-25 (1974); Ramos v. Lamm, 639 F.2d 559, 578-81 (10th Cir. 1980), cert. denied, 450 U.S. 1041 (1981). The plaintiff is also not entitled to the appointment of counsel under these circumstances. Mars v. Hanberry, 752 F.2d 254, 256 (6th Cir. 1985).
For these reasons, this panel unanimously agrees that oral argument is not necessary in this appeal. Rule 34(a), Federal Rules of Appellate Procedure. The plaintiff's motion for the appointment to counsel is, accordingly, denied and the district court's judgment is hereby affirmed pursuant to Rule 9(d)(3), Rules of the Sixth Circuit.