859 F.2d 922
Thomas C. MAHONE, Plaintiff-Appellant,
Roy Peter STERNWEILER; David John Cornet, Defendants-Appellees.
United States Court of Appeals, Sixth Circuit.
Oct. 5, 1988.
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
Before KEITH, RALPH B. GUY, Jr. and RYAN, Circuit Judges.
This pro se plaintiff appeals an order of the district court which dismissed his cause of action as frivolous pursuant to 28 U.S.C. Sec. 1915(d). Defendants have moved to dismiss the appeal. Upon review of the record and the brief submitted by plaintiff, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).
Plaintiff, Thomas C. Mahone, filed a complaint seeking both compensatory and punitive damages from defendants Roy P. Sternweiler and David Cornet in the District Court for the Northern District of Ohio. As the basis of his claim, plaintiff further alleged that his automobile had been damaged as the result of defendant Sternweiler's negligent operation of another motor vehicle. In addition, plaintiff also asserted that he had instituted legal proceedings on account of that event against defendant Sternweiler in state court, but had received inadequate damages due to a jury determination that he had been contributorily negligent. Plaintiff characterized that result as the product of the denial of his right to due process in that it was based upon allegedly perjured testimony offered by defendants in the state court proceedings. The district court, however, concluded that plaintiff's complaint was frivolous. In particular, the district court determined that plaintiff had failed to state a claim for the denial of his right to due process under 42 U.S.C. Sec. 1983 as neither defendant had acted under color of state law so as to give rise to a cause of action under that statute. Moreover, the district court also reasoned that plaintiff's complaint, insofar as it was based upon defendant Sternweiler's negligent operation of an automobile, concerned a matter previously adjudicated in an Ohio court and was therefore an unwarranted attempt to maintain an action in federal court as a substitute for an appeal from an unfavorable state court decision. Accordingly, the district court ordered the dismissal of the complaint and plaintiff thereafter filed this appeal.
Based upon a careful review of the record, this court concludes that the district court did not err in dismissing plaintiff's complaint. Accordingly, the motion to dismiss the appeal is hereby denied and the final order entered May 3, 1988, is hereby affirmed. Rule 9(b)(5), Rules of the Sixth Circuit.