Vincent Barnes Caise v. Van Spencer , 838 F.2d 1215 ( 1988 )

838 F.2d 1215

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
Vincent Barnes CAISE, Plaintiff-Appellant,
v.
Van SPENCER, Defendant-Appellee.

No. 87-5629.

United States Court of Appeals, Sixth Circuit.

Feb. 11, 1988.

1

Before BOYCE F. MARTIN Jr., and ALAN E. NORRIS, Circuit Judges, and JOINER, Senior District Judge.*

ORDER

2

This pro se Kentucky plaintiff appeals the district court's judgment dismissing his civil rights action filed pursuant to 42 U.S.C. Sec. 1983. The appeal has been referred to a panel of the court for consideration pursuant to Rule 9(a), Rules of the Sixth Circuit. The panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).

3

Plaintiff alleged that defendant conducted an illegal search and seizure in violation of plaintiff's fourth and fourteenth amendment rights. The district court dismissed the action after determining that plaintiff failed to state a claim against defendant in his official capacity.

4

Upon review, we conclude that dismissal on this basis was improper because the district court did not address defendant's liability in his individual capacity. See Brandon v. Holt, 469 U.S. 464 (1985); Littlejohn v. Rose, 768 F.2d 765 (6th Cir.1985), cert. denied, 475 U.S. 1045 (1986). Nevertheless, we further conclude that plaintiff failed to state a cognizable claim under 42 U.S.C. Sec. 1983. See Vinson v. Campbell County Fiscal Court, 820 F.2d 194, 200-01 (6th Cir.1987). Even though liberally construed, the complaint contains no set of facts under which plaintiff would be entitled to relief.

5

Accordingly, plaintiff's request for appointment of counsel is denied. The district court's judgment of dismissal entered May 7, 1987, is hereby affirmed. Rule 9(b)(5), Rules of the Sixth Circuit.

*

The Honorable Charles W. Joiner, Senior U.S. District Judge for the Eastern District of Michigan, sitting by designation