                    NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                               File Name: 12a1133n.06

                                             No. 12-5087                                     FILED
                                                                                         Nov 02, 2012
                             UNITED STATES COURT OF APPEALS                       DEBORAH S. HUNT, Clerk
                                  FOR THE SIXTH CIRCUIT

In re: PAUL ARTHUR JOHNSON;                            )
CHRISTINE LYNN JOHNSON,                                )
                                                       )
      Debtors.                                         )
____________________________________                   )
                                                       )
W. CURTIS SHAIN,                                       )       ON APPEAL FROM THE UNITED
                                                       )       STATES DISTRICT COURT FOR
        Appellant,                                     )       THE EASTERN DISTRICT OF
                                                       )       KENTUCKY
v.                                                     )
                                                       )
PAUL A. JOHNSON,                                       )
                                                       )
        Appellee.                                      )



        Before: MARTIN and WHITE, Circuit Judges; ECONOMUS, District Judge.*


        PER CURIAM. W. Curtis Shain, a pro se federal prisoner, appeals a district court order

affirming a bankruptcy court’s dismissal of his complaint challenging the discharge of a debt in a

Chapter 7 bankruptcy proceeding.

        The debtors, a husband and wife, filed their bankruptcy case on January 4, 2011. Shain, as

one of the listed creditors, was sent a notice of the filing and the deadlines for the case, which stated

that any challenge to the discharge of the debts must be filed by April 1, 2011. No challenges were

received by that date, and the debts were discharged. The bankruptcy case was closed on April 7,


        *
         The Honorable Peter C. Economus, United States Senior District Judge for the Northern
District of Ohio, sitting by designation.
                                             No. 12-5087
                                                 -2-

2011. The bankruptcy court reopened the case on receipt of Shain’s complaint challenging the

discharge. Counsel for the debtors filed a motion for judgment on the pleadings, arguing that the

complaint was not timely filed. The bankruptcy court agreed and dismissed Shain’s complaint. The

district court affirmed the dismissal.

        On appeal, Shain argues that the bankruptcy court should have allowed his complaint on the

ground of equitable tolling and that the district court erred in finding that he did not raise this issue

in the bankruptcy court. He also objects to the caption of the debtors’ motion as one for judgment

on the pleadings.

        Shain initially argues that the district court erred in affirming the bankruptcy court’s dismissal

on the ground that Shain had not raised his equitable tolling argument before the bankruptcy court.

Shain asserts that he asked for the application of equitable tolling in his response to the debtors’

motion for judgment on the pleadings. We may affirm the district court’s decision if it is correct for

any reason, including one not considered by the court. See Hoge v. Honda of Am. Mfg., Inc., 384

F.3d 238, 243 (6th Cir. 2004). Thus, the district court’s order can be affirmed on the ground that the

bankruptcy court did not abuse its discretion in declining to apply equitable tolling in this case. See

In re Maughan, 340 F.3d 337, 344 (6th Cir. 2003).

        The factors considered in determining whether equitable tolling should be applied to an

untimely filing include the filer’s lack of actual notice of the filing requirement, the lack of

constructive knowledge of the requirement, his diligence, the absence of prejudice to the other party,

and the filer’s reasonableness in being ignorant of the requirement. See id. Not one of these factors

weigh in Shain’s favor. He admits that he received actual notice that his complaint must be filed by
                                            No. 12-5087
                                                -3-

April 1, 2011. Therefore, he cannot claim lack of constructive knowledge or reasonableness in being

ignorant of the requirement. He argues that he was diligent in preparing his complaint, but he has

not shown any impediment to his drafting of the complaint, despite his incarceration. Finally, the

debtors would obviously be prejudiced by having their previously discharged debt challenged.

       Shain makes the argument that, because the meeting of creditors was continued due to the

funeral of the debtor’s mother, he believed that the date for filing his complaint would be affected.

However, the rules of bankruptcy procedure do not support this position, as they provide that the

complaint must be filed no later than sixty days after the first date set for the meeting of creditors.

Fed. R. Bankr. P. 4007(c). The first date set was January 31, 2011, and the complaint was due, as

noted in the notice provided to Shain, by April 1. The fact that a second, continued date for the

meeting may have been set did not change this fact.

       Finally, Shain objects to the caption of the debtors’ motion as one for judgment on the

pleadings. The bankruptcy court construed the document as a motion to dismiss, and the same

standard applies to both types of motions. Thus, Shain cannot demonstrate prejudice from the form

of the motion. See Roth v. Guzman, 650 F.3d 603, 605 (6th Cir. 2011).

       Because the record conclusively demonstrates that Shain was not entitled to equitable tolling,

the district court’s order affirming the bankruptcy court’s dismissal of his complaint is affirmed.
