758 F. 2d 653 - Home Improvement Co Inc West Virginia Corporation

BEFORE: ENGEL and MARTIN, Circuit Judges; and PORTER, Senior District Judge.*

This case has been referred to a panel of the Court pursuant to Sixth Circuit Rule 9(a). Upon examination of the briefs, record, and other papers filed with this Court, the panel agrees unanimously that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure.

Plaintiff appeals the district court's July 13, 1984, order denying leave to file an amended complaint and to consolidate plaintiff's cases. These motions were made after the dismissal of plaintiff's original pro se civil rights complaint was affirmed by this Court in J & K Home Improvement Co. v. Ohio Casualty Group, No. 84-5045 (6th Cir. May 3, 1984). In general, a party is not permitted to amend his complaint after he has appealed its dismissal. Cohen v. Illinois Institute of Technology, 581 F.2d 658 (7th Cir. 1978), cert. denied, 439 U.S. 1135 (1979); 3 Moore's Federal Practice p15.11 (2d ed. 1984). The proposed amended complaint is not in the record, but plaintiff does not demonstrate that any amendment would correct the deficiencies in the original complaint. The defendants named in this complaint are private parties and are not alleged to have acted under color of state law as required to state a claim under 42 U.S.C. Sec. 1983. See Parratt v. Taylor, 451 U.S. 527 (1981). Plaintiff does not allege any other basis for federal jurisdiction over the claims. See 28 U.S.C. Secs. 1331, 1332.

Plaintiff has also filed various motions with this Court to subpoena witnesses and documents. This Court does not issue subpoenas or take testimony.

Accordingly, it is ORDERED that the district court's judgment is affirmed. Sixth Circuit Rule 9(d)(2).