Lawrence Berman, Plaintiff-appellant, v. Diamond Savings & Loan Company; Barbara J. Sellers, Judge,defendants-appellees, 12 F.3d 211 (6th Cir. 1993)

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US Court of Appeals for the Sixth Circuit - 12 F.3d 211 (6th Cir. 1993) Nov. 10, 1993

Before: GUY and RYAN, Circuit Judges, and WELLFORD, Senior Circuit Judge.


Lawrence Berman, proceeding without benefit of counsel, appeals a district court judgment dismissing his complaint for declaratory relief. This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

The complaint filed by Berman sought to re-examine the bankruptcy court's holdings in previously adjudicated bankruptcy and adversary proceedings. His allegations in the declaratory judgment complaint were essentially identical to those set out in his appeal from the bankruptcy court's judgment. Therefore, dismissal of the complaint against the bankruptcy judge was not in error because a declaratory judgment proceeding cannot be used as a substitute for an appeal. See Ruip v. Kentucky, 400 F.2d 871, 872 (6th Cir. 1968) (per curiam), cert. denied, 395 U.S. 911 (1969). The complaint against Diamond was properly dismissed for the same reason. Thus, plaintiff had no basis upon which to seek declaratory relief from a judgment from which he was appealing, and he can undoubtedly prove no set of facts in support of his claims that would entitle him to relief. See Fed. R. Civ. P. 12(b) (6); Dana Corp. v. Blue Cross & Blue Shield Mut., 900 F.2d 882, 885 (6th Cir. 1990).

Accordingly, the judgment of the district court is hereby affirmed pursuant to Rule 9(b) (3), Rules of the Sixth Circuit.