Darwin Gravitt v. James Pogats

826 F.2d 1063

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.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

No. 86-1980

United States Court of Appeals, Sixth Circuit.

Aug. 10, 1987.

ORDER

Before MERRITT, Circuit Judge, and EDWARDS and CONTIE, Senior Circuit Judges.

1

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 plaintiff's brief which contains a request for an injunction, this panel agrees unanimously that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure.

2

Gravitt initiated a 42 U.S.C. Sec. 1983 civil rights complaint alleging that the defendant signed an order requiring that prisoners residing in C-Wing of the Huron Valley Men's Correctional Facility back out of their cells and that when they are moved they be handcuffed behind their backs. The district court dismissed the case as frivolous under 28 U.S.C. Sec. 1915(d).

3

In order to state a claim under 42 U.S.C. Sec. 1983, a plaintiff must allege: 1) that he was deprived of a right secured by the federal constitution or laws of the United States; and 2) that the deprivation was cause under color of state law. Parratt v. Taylor, 451 U.S. 527 (1981); Flagg Bros., Inc. v. Brooks, 436 U.S. 149 (1978). Gravitt has failed to state such a claim against the defendant. In addition, the claim raised in the complaint was not presented in his appellate brief and is deemed to have been abandoned and withdrawn for this court's review. Davis v. Maggio, 706 F.2d 568, 571 (5th Cir. 1983); United States v. Curtis, 568 F.2d 643, 645 n.1 (9th Cir. 1978). The issues raised in the appellate brief are not properly before this court because they were not raised in the district court. Chandler v. Jones, 813 F.2d 773 (6th Cir. 1987); Lyle v. Koehler, 720 F.2d 426, 428-29 (6th Cir. 1983); Hinsley v. Rose, 705 F.2d 863, 865 (6th Cir. 1983).

4

It is ORDERED that the request for an injunction be denied and the judgment of the district court be affirmed. Rule 9(b)(4), Rules of the Sixth Circuit.