Marvin Leifried v. Bill R. Story, Warden William Peters , 869 F.2d 1491 ( 1989 )

869 F.2d 1491

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
Marvin LEIFRIED, Plaintiff-Appellant,
v.
Bill R. STORY, Warden; William Peters, Defendants-Appellees.

No. 88-5697.

United States Court of Appeals, Sixth Circuit.

Feb. 1, 1989.

Before MERRITT and MILBURN, Circuit Judges, and LIVELY, Senior Circuit Judge.

ORDER

1

This pro se federal prisoner appeals the district court's judgment dismissing his civil rights complaint as frivolous pursuant to 28 U.S.C. Sec. 1915(d). The appeal 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 briefs, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).

2

Marvin Leifried filed a civil rights complaint pursuant to the authority of Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). He alleged that the federal regulations and prison policies which permit defendant prison officials to open and inspect his mail are unconstitutional. The case was referred to a magistrate who granted Leifried's motion to proceed in forma pauperis, but recommended that the complaint should be dismissed, without prior service on defendants, as frivolous under 28 U.S.C. Sec. 1915(d). Upon de novo review in light of Leifried's objections, the district court adopted the magistrate's recommendation and dismissed the complaint.

3

Upon review we conclude that the district court did not abuse its discretion by dismissing the complaint as frivolous. First, Leifried's allegations are insufficient to state a constitutional violation. See Wolff v. McDonnell, 418 U.S. 539, 567-77 (1974). Second, sua sponte dismissal without prior service on defendants was valid because Leifried was given an opportunity to respond to the intended dismissal. See Morrison v. Tomano, 755 F.2d 515, 517 (6th Cir.1985) (per curiam).

4

Accordingly, the district court's judgment is hereby affirmed. Rule 9(b)(5), Rules of the Sixth Circuit.