889 F. 2d 1089 - Warthen v. R Story M J

Before MERRITT, Chief Judge, WELLFORD, Circuit Judge, and ROBERT E. DeMASCIO, Senior District Judge.*

DeWayne Warthen, a federal prisoner proceeding pro se and in forma pauperis, appeals the order of the district court dismissing his complaint. This 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 briefs, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).

Seeking thirty-three million dollars in monetary damages, Warthen brought suit against six employees of the Federal Correctional Institution, Ashland, Kentucky, alleging violations of his constitutional rights under the first, fourth, fifth, sixth, seventh, eighth, ninth and fourteenth amendments.

The case was submitted to a magistrate who recommended that: 1) the plaintiff's motion for class certification be denied; 2) the plaintiff's complaint against the defendants in their official capacities be dismissed for lack of subject matter jurisdiction; 3) the plaintiff's complaint, except as it pertains to defendant Robert Runyon, be dismissed without prejudice for failure to exhaust administrative remedies; and 4) the plaintiff's complaint as it pertains to Runyon (and, in the alternative, all other defendants) be dismissed for failure to state cognizable constitutional claims.

The district court reviewed the case in light of Warthen's objections to the magistrate's report and recommendation, and adopted the report as the opinion of the court.

Upon review, we find no error.

Accordingly, for the reasons set forth in the magistrate's report and recommendation dated November 15, 1988, as adopted by the district court in its order dated March 2, 1989, the order of the court is hereby affirmed pursuant to Rule 9(b)(5), Rules of the Sixth Circuit.