OpenJurist

876 F2d 894 Murner v. Tyson

876 F.2d 894

Paula J. MURNER, Plaintiff-Appellant,
v.
Dr. TYSON; Ms. O'Coin, Defendants-Appellees.

No. 88-2280.

United States Court of Appeals, Sixth Circuit.

June 14, 1989.

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.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 KENNEDY, RALPH B. GUY and ALAN E. NORRIS, Circuit Judges.

ORDER

1

Paula J. Murner moves for a default judgment on appeal from the district court's judgment dismissing her civil rights action filed under 42 U.S.C. Sec. 1983. The appeal has been referred to a panel pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the certified record and the appellant's brief, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).

2

Seeking injunctive relief, Murner claimed she is suffering from cruel and unusual punishment alleging that the defendants have denied her medical attention for tapeworms or pinworms and a throat condition. The district court ordered the defendants to submit a medical report, which report clearly showed that plaintiff was having mental not physical problems and that her "tapeworms" were nonexistent. The district court then dismissed the complaint pursuant to 28 U.S.C. Sec. 1915(d). Subsequently, the court granted plaintiff's motion for reconsideration, but on reconsideration plaintiff was unable to show the defendants' medical report was incorrect.

3

The Supreme Court recently had occasion to address the scope of section 1915(d). In discusing the reach of this section, the Court stated that "the statute accords judges not only the authority to dismiss a claim based on an indisputably meritless legal theory, but also the unusual power to pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless." Neitzke v. Williams, 57 U.S.L.W. 4493, 4496 (May 2, 1989).

4

Accordingly, the motion for a default judgment is denied and the district court's judgment is hereby affirmed. Rule 9(b)(5), Rules of the Sixth Circuit.