902 F2d 34 Nunnery v. Kalamazoo County
902 F.2d 34
Vernon NUNNERY, Plaintiff-Appellant,
KALAMAZOO COUNTY; Kalamazoo Public Millage; Kalamazoo City
Police Department; Kalamazoo Circuit Court; Robert Gay,
Detective; Nancy Sckoelas, Assistant Prosecutor; McPeek,
Assistant Prosecutor; Goodwillie, Judge; Henry Devries,
United States Court of Appeals, Sixth Circuit.
May 9, 1990.
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.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 BOYCE F. MARTIN, Jr. and RALPH B. GUY, Jr., Circuit Judges; and DAVID D. DOWD, Jr., District Judge.*
The case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the record and the appellant's brief, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).
Vernon Nunnery, a pro se Michigan prisoner, appeals the district court's judgment dismissing his civil rights complaint filed under 42 U.S.C. Sec. 1983. In his complaint, Nunnery alleged that the defendants violated his constitutional rights during his criminal trial for armed robbery and possession of a firearm during the commission of a felony. Nunnery maintained, among other things, that: (1) he was denied due process; (2) he was denied the right to confrontation; and (3) he was denied effective assistance of trial counsel. He requested monetary, declaratory and injunctive relief.
A magistrate determined that Nunnery's challenge to the validity of his state court conviction and consequent confinement was not actionable under Sec. 1983 and recommended that Nunnery's complaint be dismissed without prejudice. Over Nunnery's objections, the district court adopted the magistrate's recommendation and dismissed the complaint without prejudice.
Upon review, we conclude that dismissal was proper because Nunnery's complaint essentially concerns the fact or duration of his confinement and may not be pursued under 42 U.S.C. Sec. 1983. See McCune v. City of Grand Rapids, 842 F.2d 903, 908-909 (6th Cir.1988); Hadley v. Werner, 753 F.2d 514, 516 (6th Cir.1985) (per curiam). An attack upon the fact or duration of confinement must be pursued through a habeas corpus proceeding, see Preiser v. Rodriguez, 411 U.S. 475, 500 (1975), after exhaustion of state court remedies. Pillette v. Foltz, 824 F.2d 494, 496 (6th Cir.1987).
Accordingly, the district court's judgment of dismissal without prejudice is hereby affirmed. Rule 9(b)(5), Rules of the Sixth Circuit.
The Honorable David D. Dowd, Jr., U.S. District Judge for the Northern District of Ohio, sitting by designation