816 F2d 680 Hawk v. Department of Corrections Marquette Branch Prison

816 F.2d 680

Joseph Calvin HAWK, Plaintiff-Appellant,
v.
DEPARTMENT OF CORRECTIONS, MARQUETTE BRANCH PRISON,
Defendant-Appellee.

No. 86-2030.

United States Court of Appeals, Sixth Circuit.

April 17, 1987.

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.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

ORDER


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1

The plaintiff moves for counsel on appeal from the district court's judgment dismissing this prisoner's civil rights case. Pursuant to Rule 9(a), Rules of the Sixth Circuit, this appeal has been referred to a panel of the Court for consideration. The plaintiff has filed an informal brief.

2

The plaintiff is a prisoner at the Marquette, Michigan prison. The defendant is the Michigan Department of Corrections. The plaintiff's complaint alleges that prison officials have been opening the mail sent by prisoners to lawyers, the courts, and the news media. The plaintiff requests injunctive relief against these alleged constitutional violations. The district court held that the suit was barred by the eleventh amendment and dismissed the case without prejudice.

3

The general rule is that the eleventh amendment of the federal Constitution bars any action against a state or one of its agencies. Alabama v. Pugh, 438 U.S. 781, 782 (1978) (per curiam); Edelman v. Jordan, 415 U.S. 651, 662-63 (1974). This Court has held that the Ohio Department of Rehabilitation and Correction is part of the state and does receive eleventh amendment protection. Foulks v. Ohio Department of Rehabilitation and Correction, 713 F.2d 1229, 1232-33 (6th Cir. 1983). Therefore, the district court was correct to dismiss the case against the Michigan Department of Corrections.

4

It is true that individual state officials who violate prisoners' constitutional rights can be sued without being subject to the eleventh amendment bar. Foulks, 713 F.2d at 1233. So the district court was also correct to dismiss this case without prejudice to the plaintiff's right to file another complaint which states the proper defendants.

5

The motion for counsel is denied. Upon an examination of the record and the plaintiff's informal brief, we affirm the judgment of the district court under Rule 9(b), Rules of the Sixth Circuit, because the issues are not substantial and do not require oral argument.