United States of America, Ex Rel. Jesse R. Jackson v. Cleveland State University , 841 F.2d 1127 ( 1988 )

841 F.2d 1127

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
UNITED STATES of America, ex rel. Jesse R. JACKSON,
Plaintiff-Appellant,
v.
CLEVELAND STATE UNIVERSITY, Defendant-Appellee.

No. 87-4095.

United States Court of Appeals, Sixth Circuit.

March 9, 1988.

Before RYAN, Circuit Judge, JOHN W. PECK and BAILEY BROWN, Senior Circuit Judges.

ORDER

1

The plaintiff moves to proceed in forma pauperis on appeal from the district court's order denying the plaintiff's motion for findings of fact in this civil rights case. This appeal has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. After an examination of the record and the plaintiff's brief, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).

2

The plaintiff was formerly a student at the defendant, Cleveland State University. In his complaint, the plaintiff alleges that the university imposed improper conditions on his readmission to the College of Arts and Sciences. The district court dismissed the complaint as frivolous. 28 U.S.C. Sec. 1915(d). The plaintiff subsequently filed a motion for findings of fact and conclusions of law under Fed.R.Civ.P. 52. The district court denied this motion; plaintiff appeals from this order.

3

An order denying a Rule 52 motion is interlocutory and is not appealable. Spampinato v. City of New York, 311 F.2d 439, 440 (2d Cir.1962) (per curiam), cert. denied, 372 U.S. 980 (1963); see also In re Wyse, 340 F.2d 719, 725 (6th Cir.1965). However, a motion filed under Rule 52 can be construed as a Rule 60(b) motion. Barrier v. Beaver, 712 F.2d 231, 234 (6th Cir.1983). We will construe the plaintiff's motion as a Rule 60(b) motion in order to retain appellate jurisdiction over this case.

4

The standard of review for a Rule 60(b) motion is abuse of discretion. Peake v. First Nat'l Bank, 717 F.2d 1016, 1020 (6th Cir.1983). After an examination of the record, we conclude that the district court did not abuse its discretion when it denied the plaintiff's motion.

5

In the plaintiff's motion for in forma pauperis status and in the plaintiff's brief, he argues that the district court judge should have recused himself. Because this argument was not raised below, we will not address it on appeal. Roberts v. Berry, 541 F.2d 607, 610 (6th Cir.1976).

6

The motion for in forma pauperis status is granted. The order of the district court is affirmed under Rule 9(b)(5), Rules of the Sixth Circuit, because the issues are not substantial and do not require oral argument.