Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
ORDER
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).
Fred E. Christian appeals the dismissal of his civil rights action filed under the authority of Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), as frivolous pursuant to 28 U.S.C. Sec. 1915(d). The district court concluded that plaintiff did not allege any act on the part of either defendant which would give rise to a cause of action under Bivens. Upon consideration, we affirm the judgment for reasons other than those stated by the district court. See Russ' Kwik Car Wash, Inc. v. Marathon Petroleum Co., 772 F.2d 214, 216 (6th Cir.1985) (per curiam).
First, plaintiff admittedly failed to exhaust available administrative remedies before filing suit. See Davis v. Keohane, 835 F.2d 1147, 1148 (6th Cir.1987) (per curiam). Second, plaintiff's claim that the transfer was retaliatory was not raised in the district court and will not be considered in the first instance on appeal. See Pinney Dock & Transp. Co. v. Penn Cent. Corp., 838 F.2d 1445, 1461 (6th Cir.), cert. denied, 109 S.Ct. 196 (1988).
Therefore, the judgment of the district court is affirmed. Rule 9(b)(5), Rules of the Sixth Circuit.
The Honorable William K. Thomas, Senior U.S. District Judge for the Northern District of Ohio, sitting by designation