Anthony T. McCloud v. Edwin Meese, U.S. Attorney General

830 F.2d 194 Unpublished Disposition NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. Anthony T. McCLOUD, Plaintiff-Appellant, v. Edwin MEESE, U.S. Attorney General, Defendant-Appellee. No. 87-3011 United States Court of Appeals, Sixth Circuit. September 30, 1987. ORDER Before ENGEL, MERRITT and RYAN, 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 briefs and the record, this panel agrees unanimously that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure. [2] On September 29, 1986, the plaintiff filed an action against the United States Department of Justice pursuant to 5 U.S.C. Sec. 552. In his complaint, the plaintiff sought an injunction to force the defendant to disclose 'certain records' and 'information systems of data.' Without serving the complaint, the district court entered an order giving the plaintiff thirty days in which to amend his complaint to allege which records were improperly withheld. The plaintiff failed to do so and his complaint was subsequently dismissed by the district court as frivolous under 28 U.S.C. Sec. 1915(d). [3] An action is frivolous and may be dismissed under Sec. 1915(d) 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). No facts are alleged in the plaintiff's complaint which would entitle him to relief under 5 U.S.C. Sec. 552. To compel disclosure under Sec. 552, a plaintiff must establish that an agency has improperly withheld agency records subject to disclosure under Sec. 552. Forsham v. Harris, 445 U.S. 169, 177 (1979); American Mail Line, Ltd. v. Gulick, 411 F.2d 696, 699-701 (D.C. Cir. 1969). Because the plaintiff failed to amend his complaint to allege which, if any, records were improperly withheld, his action was properly dismissed as frivolous. [4] Accordingly, the district court order entered November 18, 1986, is affirmed pursuant to Rule 9(b)(5), Rules of the Sixth Circuit. The plaintiff's motion for appointment of counsel on appeal is hereby denied in view of the absence of any factor warranting such an appointment. See Childs v. Duckworth, 705 F.2d 915, 922 (7th Cir. 1983).