3, ECF No. 11.) The Court will dismiss this case for failure to prosecute if Plaintiff fails to pay
the fee.
IT IS SO ORDERED.

6 -15-yole PrYE

DATE EDMUND A)SARGUS, JR.
CHIEF ED STATES DISTRICT JUDGE



UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

RICHARD E. GARABRANDT,

Plaintiff, Case No. 2:18-cev-93

CHIEF JUDGE EDMUND A. SARGUS, JR.
v. Magistrate Judge Chelsey M. Vascura

LINTON D. LEWIS, et al.,

Defendants.

OPINION AND ORDER

This matter is before the Court on Plaintiff Richard E. Garabrandt’s Motion to Correct
the Record and for Relief from the Court’s May 29, 2018 Order (ECF No. 12). In its May 29
Order, the Court denied Plaintiff's Motion Pursuant to Federal Rule of Civil Procedure 60(b)(6)
and Motion to Proceed Without Prepayment of Fees (In Forma Pauperis). For the following
reasons, Plaintiff's Motion to Correct the Record and for Relief is GRANTED IN PART and

DENIED IN PART.

A. Rule 60(a)

Plaintiff asks the Court to correct the record under Federal Rule of Civil Procedure 60(a),
which states, in relevant part, that “(t]he court may correct a clerical mistake or a mistake arising
from oversight or omission whenever one is found in a judgment, order, or other part of the
record.” Specifically, Plaintiff requests that “the clerical record [be] corrected to reflect that
Plaintiff filed a[n] action pursuant to 42 U.S.C. [§] 1985 not 1983 as recorded.” (Mot. at 1, ECF

No. 12.) The Court GRANTS this request and will direct the Clerk to update the docket.


B. Rule 60(b)

Under Rule 60(b), “the court may relieve a party or its legal representative from a final
judgment, order, or proceeding.” Fed. R. Civ. P. 60(b) (emphasis added). Because the Court has
not entered a final order in this matter, Plaintiff cannot rely on Rule 60(b). See Consolidation
Coal Co. v. U.S. Dep't of Interior, 43 F. Supp. 2d 857, 862-63 (S.D. Ohio 1999). The Court
therefore construes Plaintiff's Motion as a request for reconsideration of an interlocutory order.
The Court has discretion to reconsider an interlocutory order at any time. See Leelanau Wine
Cellars, Ltd. v. Black & Red, Inc., 118 F. App’x 942, 945—46 (6th Cir. 2004). But as explained
below, Plaintiff has not articulated a valid basis for reconsideration.

Plaintiff argues that the Court erred in requiring him to submit a copy of his prison trust
fund account statement under 28 U.S.C. § 1915(a)(2). (See Mot. at 1-2.) He suggests that he
would only be subject to § 1915(a)(2)’s requirements if there was an “official state document” in
the record indicating that he is a prisoner. (/d. at 1.) This is so, Plaintiff avers, because “[t]he law
to be applied in any case is the law of the state.” (/d.)

Plaintiff's assertion that he only need furnish a copy of his prison trust fund account
statement if there is an “official state document” in the record is unfounded. Section 1915(a)(2)
contains no such requirement. See 28 U.S.C. § 1915(a)(2).

Plaintiff's assertion that “[t]he law to be applied in any case is the law of the state” is
equally unfounded. A federal court deciding a state-law claim applies state law for all
substantive issues and federal law for procedural issues. See Erie R.R. Co. v. Tompkins, 304 U.S.
64, 78-79 (1938); Range v. Douglas, 763 F.3d 573, 580 (6th Cir. 2014). In cases brought under
the United States Constitution or a federal statute, a federal court will apply only federal law. See

Erie, 304 U.S. at 78 (“Except in matters governed by the Federal Constitution or by acts of


Congress, the law to be applied in any case is the law of the state.” (emphasis added)). Here,
Plaintiff brings his claim under a federal statute, so the Court applies federal law. (See Mot. at 1
(stating that “Plaintiff filed a[n] action pursuant to 42 U.S.C. [§] 1985”).)

Plaintiff also argues that the Court lacks subject-matter jurisdiction over this case and that
the Court therefore has no ability to deny his request to proceed in forma pauperis. (See Mot. at
2.) Plaintiff appears to ask that the Court throw out the proverbial baby with the bath water, as
the Court would be required to dismiss Plaintiff's case if it lacked subject-matter jurisdiction. See
Fed. R. Civ. P. 12(h)(3). The Court need not further analyze the argument’s logic though.
Because Plaintiff brings this case under federal law, the Court has subject-matter jurisdiction. 28
U.S.C. § 1331 (“The district courts shall have original jurisdiction of all civil actions arising
under the Constitution, laws, or treaties of the United States.”).

Lastly, Plaintiff asserts that § 1915(a)(2)’s requirements do not apply when, as here, a
plaintiff alleges that his conviction was obtained unconstitutionally. (See Mot. at 2.) Plaintiff is
incorrect: § 1915(a)(2) does not contain an exception for prisoners who believe that they are
wrongfully incarcerated. See 28 U.S.C. § 1915(a)(2).

Because Plaintiff has not articulated a valid basis for reconsideration, the Court DENIES
his request for relief under Rule 60(b).

IL.

For these reasons, Plaintiff's Motion to Correct the Record and for Relief from the
Court’s May 29, 2018 Order (ECF No. 12) is GRANTED IN PART and DENIED IN PART.
The Court DIRECTS that the docket be updated to indicate that Plaintiff brings his case under
42 U.S.C. § 1985. And the Court reminds Plaintiff that he has through June 28, 2018, to pay the

full $400 filing fee if he wants to continue prosecuting this case. (May 29, 2018 Op. & Order at