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Keelen v. Cain, 01-31274 (2002)

Court: Court of Appeals for the Fifth Circuit Number: 01-31274 Visitors: 60
Filed: Jan. 21, 2002
Latest Update: Mar. 02, 2020
Summary: UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _ No. 01-31274 Summary Calendar _ KARSTON KEELEN, Plaintiff-Appellant, versus BURL CAIN; UNKNOWN DURRETT; CORNEL JONES; UNKNOWN REGIS; UNKNOWN OWEN; UNKNOWN TURNER; UNKNOWN BARBET; UNKNOWN ZARBAR; UNKNOWN HALL; UNKNOWN BROOKS; UNKNOWN MILES; UNKNOWN BARBRA; UNKNOWN THOMPSON; UNKNOWN FOUTAIN; UNKNOWN PARKER; UNKNOWN NORWOOD; UNKNOWN SANDERS; UNKNOWN ORGON; UNKNOWN DANIEL; UNKNOWN LOCKWOOD; UNKNOWN ALLEN; UNKNOWN ALLEN; UNKNOWN NETTLES; UNKNOWN
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                  UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT

                       ____________________

                           No. 01-31274
                         Summary Calendar
                       ____________________


                            KARSTON KEELEN,

                                                Plaintiff-Appellant,

                                versus

 BURL CAIN; UNKNOWN DURRETT; CORNEL JONES; UNKNOWN REGIS; UNKNOWN
   OWEN; UNKNOWN TURNER; UNKNOWN BARBET; UNKNOWN ZARBAR; UNKNOWN
    HALL; UNKNOWN BROOKS; UNKNOWN MILES; UNKNOWN BARBRA; UNKNOWN
     THOMPSON; UNKNOWN FOUTAIN; UNKNOWN PARKER; UNKNOWN NORWOOD;
UNKNOWN SANDERS; UNKNOWN ORGON; UNKNOWN DANIEL; UNKNOWN LOCKWOOD;
  UNKNOWN ALLEN; UNKNOWN ALLEN; UNKNOWN NETTLES; UNKNOWN DEVEAL;
 UNKNOWN HAMPTON; UNKNOWN FONTENOT; UNKNOWN REED; UNKNOWN HOLMES;
                  UNKNOWN SPIKE; UNKNOWN ANDREW,

                                               Defendants-Appellees.


          Appeal from the United States District Court
              for the Middle District of Louisiana
                          (01-CV-689-D)

                         January 21, 2002
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

     Karston Keelen, Louisiana prisoner #125690, appeals, pro se,

the denial of his motion:    (1) to amend the judgment dismissing his

civil rights complaint without prejudice for failure to comply with



     *
      Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
the     district   court’s    deficiency      notice     concerning    Keelen’s

application for leave to proceed in forma pauperis (IFP); or (2) to

make additional findings of fact.              While it is unclear whether

Keelen moved pursuant to Federal Rules of Civil Procedure 52(b) or

59(e), he challenges the correctness of the judgment. Accordingly,

we construe his motion as brought pursuant to Rule 59(e).                    See,

e.g. ,       Nat’l     Metal        Finishing            Co.,       Inc.      v.

BarclaysAmerican/Commercial, Inc., 
899 F.2d 119
, 122 (1st Cir.

1990)     (“Circuit   precedent    suggests      that     challenges    to   the

correctness of a judgment are properly construed as motions under

Rule 59(e).”); 12 JAMES WM. MOORE           ET AL.,   MOORE’S FEDERAL PRACTICE ¶

59.05[6] (3d ed. 1999) (“[A] Rule 59(e) motion seeks an alteration

or amendment of a judgment, often by way of the court’s finding of

additional facts.     In contrast, a Rule 52(b) motion seeks only the

correction of findings or the finding of additional facts without

the amendment of the judgment”.).

       We generally review the denial of a Rule 59(e) motion for

abuse of discretion.         Fletcher v. Apfel, 
210 F.3d 510
, 512 (5th

Cir. 2000). That standard applies where, as here, the challenge is

to the district court’s discretion in marshaling the facts and

deciding whether its judgment should be changed. See id.; see also

Trust Co. Bank v. U.S. Gypsum Co., 
950 F.2d 1144
, 1147 n.5 (5th

Cir.     1992).    Keelen    contends   the    district     court   abused   its

discretion in the light of the fact that he satisfied the noticed


                                        2
deficiency by submitting a certified statement of account in a

timely manner.

       The deficiency notice stated that “failure to amend the

pleadings as indicated will result in the dismissal of your suit by

the court without further notice”.              The deficiency indicated was

that   “[Keelen]      must   have    an   authorized        officer   complete    the

Statement of Account”.          The court enclosed a statement of account

form when it mailed the deficiency notice to Keelen.                       That form

contained,    inter     alia,    a     block   for    the    statutorily-mandated

disclosure    of    financial     information        for    the   six-month   period

preceding the filing of Keelen’s complaint.                       See 28 U.S.C. §

1915(a)(2) (“A prisoner seeking to bring a civil action ... without

prepayment of fees ... shall submit a certified copy of the trust

fund   account     statement     (or    institutional        equivalent)    for   the

prisoner for the 6-month period immediately preceding the filing of

the complaint ... obtained from the appropriate official of each

prison at     which    the    prisoner    is   or    was    confined.”     (emphasis

added)).     Although Keelen timely returned that enclosed form, it

was apparently completed by him and was not certified by an

authorized official.         Keelen contemporaneously filed an additional

statement of account form, which was apparently completed and

certified by an authorized official; but, that form did not provide

the statutorily-mandated six-month information.

                                                                       AFFIRMED


                                          3

Source:  CourtListener

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