Daniel L. Newman, Plaintiff-appellant, v. Ohio Peace Officer Training Council, Defendant-appellee, 52 F.3d 326 (6th Cir. 1995)

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US Court of Appeals for the Sixth Circuit - 52 F.3d 326 (6th Cir. 1995) April 20, 1995

Before: NELSON and BOGGS, Circuit Judges; and GILMORE, District Judge.* 

ORDER

Daniel L. Newman appeals a district court judgment dismissing his civil rights complaint as frivolous pursuant to 28 U.S.C. § 1915(d). The 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).

Newman filed his complaint in the district court alleging that his initial score on a state aptitude test was affected by noise at the test site, that he failed the test by a single point on his second attempt, and that he is required to reenter a police academy which cost $1,700 before he can retake the test as a result of his having failed twice. Plaintiff named only the Ohio Peace Officer Training Council in an unspecified capacity and sought a passing grade on the aptitude test and injunctive relief requiring the Council to adopt a policy that testing sites be quiet. The district court dismissed the complaint sua sponte as frivolous, but expressly declined to certify that an appeal could not be taken in good faith pursuant to 28 U.S.C. § 1915(a).

In this timely appeal, plaintiff essentially reiterates the allegation made in his complaint that his test results are unfair. Upon consideration, the judgment of the district court is affirmed for the reason stated by the district court in its memorandum opinion filed November 14, 1994. Essentially, the district court properly determined that plaintiff alleged no facts giving rise to a cognizable federal claim. See Flagg Bros. v. Brooks, 436 U.S. 149, 155-57 (1978); Brotherton v. Cleveland, 923 F.2d 477, 479 (6th Cir. 1991). Therefore, the district court did not abuse its discretion in dismissing plaintiff's complaint. See Denton v. Hernandez, 112 S. Ct. 1728, 1734 (1992).

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

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The Honorable Horace W. Gilmore, United States District Judge for the Eastern District of Michigan, sitting by designation