Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.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 KEITH and NORRIS, Circuit Judges, and PECK, Senior Circuit Judge.
ORDER
Plaintiff moves for appointment of counsel on appeal from the district court's order dismissing his civil rights action as frivolous pursuant to 28 U.S.C. Sec. 1915(d). Upon consideration of the record and the appellate brief, this panel unanimously agrees that oral argument is unnecessary. Fed.R.App.P. 34(a).
In his complaint, filed pursuant to 42 U.S.C. Sec. 1983, plaintiff sought monetary damages for his alleged illegal incarceration.
Upon review, we conclude the district court's dismissal of the action was proper. Such dismissal, however, is without prejudice to plaintiff's opportunity to refile his Sec. 1983 claim if and when he establishes through a petition for a writ of habeas corpus that his conviction resulted from his alleged constitutional infirmities. See Hadley v. Werner, 753 F.2d 514 (6th Cir.1985) (per curiam).
Accordingly, the motion for counsel is denied and the district court's judgment is affirmed. Rule 9(b)(5), Rules of the Sixth Circuit.