944 F2d 904 Cain v. Bolden W

944 F.2d 904

Andrew L. CAIN, Plaintiff-Appellant,
v.
Dan BOLDEN, Theodore W. Koehler, Gary Hoffman, Defendants-Appellees.

No. 91-1541.

United States Court of Appeals, Sixth Circuit.

Sept. 16, 1991.

NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.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 BOYCE F. MARTIN, Jr., Circuit Judges, and KRUPANSKY, Senior Circuit Judge.

ORDER

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1

Andrew L. Cain, a former Michigan prisoner, appeals the district court's dismissal of his pro se civil rights complaint filed pursuant to 42 U.S.C. § 1983. The case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination, the panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).

2

Seeking monetary and injunctive relief, Cain sued the defendant prison officials in their individual and official capacities alleging that during his stay at Marquette Branch Prison (MBP) between January 3, 1986 through July 14, 1989, he was denied access to the courts due to the inadequacy of the prison law library and its call-out system. Cain also requested injunctive relief directing that neither he nor his witnesses be retaliated against for his filing the instant complaint. Cain has since been paroled from prison.

3

Defendants filed a motion for summary judgment and Cain responded. In his recommendation, a U.S. magistrate judge found that Cain had adequately demonstrated that a question of fact existed as to whether the prison's call-out system provided him with effective and meaningful access to the courts. The magistrate however recommended that the complaint be dismissed because the action was barred by eleventh amendment immunity because the defendants were sued for acts done in their capacity as state officers. The magistrate also recommended that defendant Koehler be dismissed from the action pursuant to Fed.R.Civ.P. 4(j), because plaintiff did not timely serve him with a copy of the summons and complaint, and that Cain was not entitled to injunctive relief because he had not demonstrated that harm from governmental agents was imminent. The district court adopted the magistrate's recommendation after reviewing Cain's objections. On appeal, Cain reasserts his claims, requests the appointment of counsel, and has filed a pro se brief. Defendants have not participated in this appeal.

4

Upon review, we affirm the district court's judgment for the reasons stated in the magistrate's report dated February 25, 1991, as adopted by the district court on April 15, 1991. Defendants are entitled to eleventh amendment immunity because the acts complained of were taken in the defendants' official capacity. See Cowan v. University of Louisville, 900 F.2d 936, 942 (6th Cir.1990). In addition, we note that Cain's request for injunctive relief is moot because he has been released from prison since the filing of this complaint.

5

Accordingly, the request for counsel is denied, and the district court's judgment is hereby affirmed pursuant to Rule 9(b)(3), Rules of the Sixth Circuit.