Darwin Gravitt v. Gene Borgert Everett Elkins

803 F.2d 719 Unpublished Disposition NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.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. GENE BORGERT; EVERETT ELKINS, Defendants-Appellees. No. 86-1405. United States Court of Appeals, Sixth Circuit. Sept. 29, 1986. — 1 — BEFORE: KEITH, KENNEDY and CONTIE, Circuit Judges ORDER — 2 — The plaintiff appeals the judgment dismissing his pro se prisoner civil rights action as frivolous under 28 U.S.C. Sec. 1915(d). He now moves for the appointment of counsel. That motion was referred to this panel pursuant to Rule 9(a), Rules of the Sixth Circuit. — 3 — Under Sec. 1915(d), a district court may dismiss a pauper action as frivolous "if it appears beyond doubt that the plaintiff can prove no set of facts which would entitle him to relief." Malone v. Colyer, 710 F.2d 258, 261 (6th Cir. 1983). — 4 — In this case, the plaintiff complained that the periodic testing of an emergency generator at the Huron Valley Men's Correction Facility stopped the flow of fresh air into his cell for up to an hour at a time. This claim does not rise to the level of a constitutional deprivation. See, e.g., Russell v. Enser, 496 F.Supp. 320, 325-26 (D.S.C. 1979), aff'd without opinion, 624 F.2d 1095 (4th Cir. 1980). The district court did not err in dismissing this action under Sec. 1915(d). — 5 — It is ORDERED that the motion for appointment of counsel be and it hereby is denied. — 6 — Upon examination of the record and the plaintiff's informal brief, this panel agrees unanimously that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure. — 7 — It is therefore ORDERED that the district court's judgment of April 9, 1986, be and it hereby is affirmed. Rule 9(d)(2), Rules of the Sixth Circuit.