Before MERRITT and KRUPANSKY, Circuit Judges, and JAMES L. GRAHAM, District Judge.*

Plaintiff, Herbert Lee Bounds, appeals an order of the district court which dismissed his civil rights action. He now moves for leave to proceed in forma pauperis and the appointment of counsel. Upon review of the record and the plaintiff's brief, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).

Plaintiff filed a complaint pursuant to 42 U.S.C. Sec. 1983 in the District Court for the Western District of Kentucky. As the basis of his claims for both compensatory and punitive damages, he alleged that defendants had violated his rights under the fourth amendment by conducting an unreasonable search and seizure of his van. Defendants' chief response to the complaint was the filing of a motion for summary judgment in which they argued that, on the basis of the testimony contained in plaintiff's deposition, he could not maintain a cause of action under 42 U.S.C. Sec. 1983. The district court concurred and dismissed the complaint in an order entered on March 23, 1989. Plaintiff then filed this appeal.

Upon review of the record, this court concludes that the district court did not err in dismissing plaintiff's complaint. Accordingly, the motion for leave to proceed in forma pauperis is hereby granted; the motion for appointment of counsel is hereby denied and the district court's final order is hereby affirmed. Rule 9(b)(5), Rules of the Sixth Circuit.