Friskey v. Bracke et al

Filing 39

MEMORANDUM OPINION & ORDER: 1)Friskey's Letter to the Court 36 will be construed as a Motion for Reconsideration pursuant to Federal Rule of Civil Procedure 59(e) and is DENIED. 2) The Clerk of the Court shall send Friskey a Sixth Cir cuit Form 4 and a Certificate of Inmate Account [EDKY Form 523]. 3. Friskey must either pay the $505.00 appellate filing fee to the Clerk of the Court or (1) have prison staff certify the Certificate of Inmate Account [EDKY Form 523], (2) compl ete the Sixth Circuit Form 4, and (3) file both of these documents with this Court (the District Court, not the Sixth Circuit Court of Appeals). 4) Friskey must take each of these steps within thirty days or the Sixth Circuit will dismiss the appeal for failure to prosecute. 5) The Clerk of the Court shall forward a copy of this Order to the Clerk of the Court of Appeals for the Sixth Circuit. Signed by Judge William O. Bertelsman on 4/20/2018.(ECO)cc: COR, 6CCA w/copy of Order, Sixth Circuit Form 4 and EDKY Form 523 Certificate of Inmate Account. to Ronnie Friskey, pro se, at address listed on the docket sheet.

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION at COVINGTON
RONNIE FRISKEY,

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Plaintiff,
v.
ANTHONY J. BRACKE, et al.,
Defendants.

Civil Action No. 2:17-056-WOB

MEMORANDUM OPINION
AND ORDER

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This matter is before the Court on a Notice of Appeal filed by Plaintiff Ronnie Friskey [R.
35], as well as a letter to the Court in which Friskey argues that the Court erred in dismissing the
complaints filed in this matter. [R. 36].
In his letter, Friskey argues that the Court mistakenly construed two civil complaints that
he intended to file as separate actions together in one case. [R. 36]. Friskey explains: “I sent one
Civil Complaint titled “RONNIE EUGENE FRISKEY V. ANDERSON L. MUSE et al...” AND
ANOTHER on a separate and timely date titled “RONNIE EUGENE FRISKEY V. ANOTHNY
J. BRACKE et al.” However this Court mistakenly construed the second complaint I filed as an
amended complaint of the first complaint I filed or vice versa?” [Id.]. The remainder of Friskey’s
letter states Friskey’s disagreement with the Court’s legal conclusions in its Order dismissing this
case. [Id.].
This letter will be construed as a motion pursuant to Federal Rule of Civil Procedure 59(e)
seeking reconsideration of the Court’s dismissal of Friskey’s original Complaint, First Amended
Complaint and Second Amended Complaint. [R. 33]. A court may grant relief under Rule 59(e)
only to (1) correct a clear error of law; (2) account for newly discovered evidence; (3)
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accommodate an intervening change in controlling law; or (4) prevent a manifest injustice.
American Civil Liberties Union of Ky. v. McCreary Co., Ky., 607 F.3d 439, 450 (6th Cir. 2010);
Besser v. Sepanek, 478 F. App’x 1001, 1001-02 (6th Cir. 2012).
Here, Friskey’s motion fails to establish any ground for relief. The Court clearly explained
in its Order dismissing Friskey’s complaints that it considered all of the allegations set forth in
both his original Complaint and First and Second Amended Complaints and found that all of
Friskey’s claims challenge the validity of his underlying conviction and sentence and, accordingly,
are precluded by Heck v. Humphrey, 512 U.S. 477 (1994). [R. 33 at p. 2-3]. Thus, even if there
was a clerical error in the filing of Friskey’s claims, which would have been understandable given
that the claims all arose from Friskey’s underlying criminal prosecution and four of the defendants
were named in both of the complaints, he was not prejudiced by this error because all of his claims
were considered by the Court. 1
With respect to the remainder of Friskey’s arguments, where a party simply disagrees with
the district court’s conclusions, the appropriate vehicle for relief is appeal, not a motion to alter or
amend a judgment. Graham ex rel. Estate of Graham v. County of Washtenaw, 358 F.3d 377, 385
(6th Cir. 2004)(motion to alter or amend judgment is not vehicle for obtaining post-judgment reargument on issues already decided). Because Friskey has failed to satisfy the requirements for
relief under Rule 59(e), the Court will deny his motion to reconsider.
Turning to Friskey’s Notice of Appeal, although he has filed a Notice of Appeal [R. 35],
he has not paid the $505.00 appellate filing fee nor has he filed a motion to proceed in forma
pauperis on appeal.

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Indeed, had Friskey’s complaints been filed separately, Friskey would have been responsible for
two separate filing fees.
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Accordingly, IT IS ORDERED that:
1.

Friskey’s Letter to the Court [R. 36] will be construed as a Motion for

Reconsideration pursuant to Federal Rule of Civil Procedure 59(e) and is DENIED.
2.

The Clerk of the Court shall send Friskey a Sixth Circuit Form 4 and a Certificate

of Inmate Account [EDKY Form 523].
3.

Friskey must either pay the $505.00 appellate filing fee to the Clerk of the Court or

(1) have prison staff certify the Certificate of Inmate Account [EDKY Form 523], (2) complete
the Sixth Circuit Form 4, and (3) file both of these documents with this Court (the District Court,
not the Sixth Circuit Court of Appeals).
4.

Friskey must take each of these steps within thirty days or the Sixth Circuit will

dismiss the appeal for failure to prosecute.
5.

The Clerk of the Court shall forward a copy of this Order to the Clerk of the Court

of Appeals for the Sixth Circuit.
This 20th day of April, 2018.

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