Anthony Foye v. Kelly M. Vanfurth Lieutenant Reed Lieutenant Montgomery K. Dupes, Supervisor

7 F.3d 233

NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
Anthony FOYE, Plaintiff-Appellant,
v.
Kelly M. VANFURTH; Lieutenant Reed; Lieutenant Montgomery;
K. Dupes, Supervisor, Defendants-Appellees.

No. 93-5057.

United States Court of Appeals, Sixth Circuit.

Sept. 29, 1993.

Before: KEITH, GUY and BATCHELDER, Circuit Judges.

ORDER

1

Anthony Foye is a federal prisoner who appeals pro se from a district court judgment dismissing his civil rights case filed under the authority of Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 397 (1971). His appeal has been referred to a panel of this court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon review, the panel unanimously agrees that oral argument is not needed in this case. Fed.R.App.P. 34(a).

2

Foye sought both monetary and injunctive relief in his complaint. He alleged that the defendants had violated his constitutional rights by confiscating a photograph and a sweat suit without due process of law. On December 10, 1992, the district court dismissed the case under 28 U.S.C. § 1915(d), because Foye had an adequate postdeprivation procedure available to him through the Federal Torts Claims Act, 28 U.S.C. § 2679(b)(1). Cf. Parratt v. Taylor, 451 U.S. 527, 543-44 (1981), overruled in part on other grounds, Daniels v. Williams, 474 U.S. 327, 330-31 (1986). It is from this judgment that Foye now appeals.

3

The district court's dismissal of Foye's complaint under 28 U.S.C. § 1915(d) is reviewed for an abuse of discretion on appeal. See Denton v. Hernandez, 112 S.Ct. 1728, 1734 (1992). A complaint may be dismissed under § 1915(d) if it lacks an arguable basis in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989).

4

Upon review, we affirm the sua sponte dismissal of Foye's complaint for the reasons stated in the district court's Order of Dismissal. See Rodriguez-Mora v. Baker, 792 F.2d 1524, 1526-27 (11th Cir.1986) (per curiam). In addition, we note that the dismissal of Foye's case was appropriate because he had not demonstrated exhaustion of the administrative remedies that are available to him regarding his claims for injunctive relief. See McCarthy v. Madigan, 112 S.Ct. 1081, 1091 n. 1 (1992); Davis v. Keohane, 835 F.2d 1147, 1148 (6th Cir.1987) (per curiam).

5

Accordingly, the district court's judgment is affirmed. Rule 9(b)(3), Rules of the Sixth Circuit.