Merton E. Bond, Plaintiff-appellant, v. Jeanette Mulley, Defendant-appellee, 891 F.2d 289 (6th Cir. 1989)

ORDER

Plaintiff Bond appeals pro se from the district court's order dismissing his civil rights case. 42 U.S.C. § 1983 (1982). 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).

Bond is a prisoner at the Luther Luckett Correctional Complex in LaGrange, Kentucky. The defendant is the Chief Deputy Clerk of the Kentucky Court of Appeals.

In his complaint, Bond alleged that the defendant refused to file a notice of appeal in the trial court on Bond's behalf. Bond requested $50,000 in damages. The district court dismissed the case sua sponte because Bond did not show a violation of a constitutional right.

A complaint is frivolous if it lacks an arguable basis in law or in fact. Neitzke v. Williams, 109 S. Ct. 1827, 1831 (1989). An example of a case lacking an arguable basis in law is a case lacking a liberty or property interest. 109 S. Ct. at 1833.

Here Bond's case lacks a constitutional interest. Bond alleged that, under Fed. R. App. P. 4(a) (1), the Kentucky deputy clerk was required to file his notice of appeal in the trial court. However, Fed. R. App. P. 4(a) (1) does not apply to the state court. Under Ky.Civ.Rule 73.01(2), the litigant must file a notice of appeal in the trial court. Therefore, the district court correctly held that Bond's case lacks a constitutional interest.

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.