Unpublished Dispositionlenvill Spencer, Plaintiff-appellant,j & K Home Improvement, Inc.; Tri-state Builders, Inc., Plaintiffs, v. West American Insurance Company; County Detective Magnut;sheriff Knox County, Defendants-appellees, 862 F.2d 316 (6th Cir. 1988)

ORDER

Plaintiff Spencer moves for counsel on appeal from the district court's order denying a motion to file an amended complaint in this civil rights case. 42 U.S.C. § 1983. The appeal has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon consideration, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

In his complaint, Spencer alleged that the West American Insurance Company breached its contractual duty to defend civil suits filed against Spencer. He also alleged that the county detective and county sheriff obtained an illegal governor's warrant resulting in Spencer's illegal prosecution. The district court dismissed the complaint as frivolous under 28 U.S.C. § 1915(d).

Approximately five months later, Spencer filed a motion to file an amended complaint. The district court denied this motion, and Spencer appealed from that order.

We construe the motion to file an amended complaint as a motion for relief from judgment under Fed. R. Civ. P. 60(b). The denial of a Rule 60(b) motion is appealable in and of itself. Peake v. First Nat'l Bank, 717 F.2d 1016, 1020 (6th Cir. 1983). The appeal does not bring up the underlying judgment for review; the standard of review on appeal is abuse of discretion. 717 F.2d at 1020.

We have examined the record and conclude that the district court did not abuse its discretion when it denied the motion to file an amended complaint. Accordingly, the motion for counsel is denied. 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.