Kelly v. Schafer
ORDER Denying 35 Motion for Reconsideration. Signed by District Judge Thomas L. Ludington. (Sian, M)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
MICHAEL A. KELLY,
Case No. 14-cv-13081
Honorable Thomas L. Ludington
ORDER DENYING MOTION FOR RECONSIDERATION
Michael Kelly initiated this case against Defendant Debra Schafer on August 11, 2014.
See Compl., ECF No. 1. Kelly alleged that Schafer deprived him of a constitutionally protected
right to participate in the Support Services for Veteran Families (“SSVF”) case management
program administered by Schafer’s organization, Mid Michigan Community Action Agency
(“MMCAA”). See Am. Compl., ECF No. 7. Schafer moved to dismiss Kelly’s complaint for
failing to state a claim against her. See Def.’s Mot. Dismiss, ECF No. 30. Further, Magistrate
Judge Patricia T. Morris, to whom this case was referred, recommended dismissing Kelly’s case
sua sponte under the in forma pauperis screening procedure. See Rep. & Rec., ECF No. 23; see
also 28 U.S.C. § 1915. Judge Morris concluded, and Schafer similarly argues that the decision to
end Kelly’s participation in the MMCAA case management program was made by the
Department of Veterans Affairs, not by Schafer. Id. As a result, according to Judge Morris and
Defendant Schafer, Kelly could not sustain his cause of action. Kelly opposed Defendant
Schafer’s motion and objected to the conclusions in Judge Morris’ report. See Pl.’s Mot.
Reconsid., ECF No. 25; Pl.’s Resp. Br., ECF No. 31.
Judge Morris’ Report, Schafer’s Motion to Dismiss, and Kelly’s Amended Complaint
were all taken up together by this Court in an order issued on September 28, 2015. See
September 28, 2015 Order, ECF No. 33. The Court held that Kelly could not claim a property
interest in housing assistance under the Support Services for Veteran Families program because
he could not demonstrate any form of entitlement to the benefits purportedly conferred by the
statutory scheme. Id. Thus, even if Kelly could demonstrate that Schafer, not the Department of
Veterans Affairs, was the party that terminated his participation in SSVF, he could not establish
that he had a constitutional right to participate in the program. Id. Kelly has moved for
reconsideration of that opinion. See Pl.’s Mot. Reconsid., ECF No. 35. Kelly argues in his
motion that this Court “made an error” in its opinion. Id. Kelly writes that “[t]he plaintiff
originally filed this case on 08-11-14. The Plaintiff filed an Amended complaint just 4 days later
on 08-15-14.” Id. (sic throughout). Kelly then cites to the section of Federal Rule of Civil
Procedure 15 concerned with amending a complaint as a matter of course. Id. Finally, Kelly
RECONSIDERATION BASED ON HIS AMENDED COMPLAINT.” Id. (sic to formatting).
A motion for reconsideration will be granted if the moving party shows: “(1) a palpable
defect, (2) the defect misled the court and the parties, and (3) that correct the defect will result in
a different disposition of the case.” Michigan Dept. of Treasury v. Michalec, 181 F. Supp. 2d
731, 733-34 (E.D. Mich. 2002) (quoting E.D. Mich. LR 7.1(g)(3)). A “palpable defect” is
“obvious, clear, unmistakable, manifest, or plain.” Id. at 734 (citing Marketing Displays, Inc. v.
Traffix Devices, Inc., 971 F. Supp. 2d 262, 278 (E.D. Mich. 1997).
Kelly’s motion for reconsideration will be denied. Kelly has not pointed out any palpable
defect in the Court’s reasoning, let alone one that misled the Court and the parties or that would
lead to a different disposition of the case. Kelly’s one-page motion appears to indicate that the
Court erred in not considering the Amended Complaint Kelly filed on August 15, 2014. But that
is not borne out by the record. Indeed, while the first Report & Recommendation issued by Judge
Morris did not properly consider Kelly’s Amended Complaint, this Court remanded the case to
Judge Morris with specific instructions to consider that document. See Order Sustaining Objs.,
ECF No. 21. Thus, the Court was aware of Kelly’s Amended Complaint as early as December
Second, Kelly’s Amended Complaint fundamentally altered the claims Kelly was making
in this case. Kelly’s initial complaint appeared to allege a form of housing discrimination under
the SSVF program. See Pl.’s Compl., ECF No. 1. Kelly’s Amended Complaint shifted the focus
of his legal claims to allege that the termination of his participation in the SSVF program
deprived him of a protected property right under the Constitution without due process of law. See
Pl.’s Am. Compl., ECF No. 7. The latter legal claims are the only claims considered by the Court
in its September 28, 2015 Opinion & Order. See September 28, 2015 Order, ECF No. 33
(holding in § IV that the SSVF program does not create a constitutionally protected property
right). If any doubt remained as to which complaint the Court was addressing, the order line of
the Court’s opinion is manifestly clear. There the order states “[i]t is further ORDERED that
Plaintiff Kelly’s Amended Complaint, ECF No. 7, is DISMISSED with prejudice.” Id. at 14.
Kelly’s claims are without merit.
Perhaps Kelly was misled by the Court’s Judgment, ECF No. 34. The Judgment states
“[i]t is further ORDERED AND ADJUDGED that the complaint is DISMISSED with
prejudice.” Id. The “complaint,” however, is a reference to the Amended Complaint. “An
amended complaint supersedes an earlier complaint for all purposes.” Calhoun v. Bergh,
769 F.3d 409, 410 (6th Cir. 2014) (quoting In re Refrigerant Compressors Antitrust Litigation,
731 F.3d 586, 589 (6th Cir.2013)) (internal quotation marks omitted). Thus, once Kelly amended
his complaint, the Amended Complaint became the operative complaint in the case. Any
reference to a complaint was, by default, to Kelly’s Amended Complaint. Absent any substantive
evidence to the contrary (and Kelly provides none) mere reference to “complaint” rather than
“amended complaint” does not mean the Court considered the wrong document.
Accordingly, it is ORDERED that Plaintiff Kelly’s Motion for Reconsideration, ECF
No. 35, is DENIED.
Dated: October 7, 2015
s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge
PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on October 7, 2015.
s/Michael A. Sian
MICHAEL A. SIAN, Case Manager
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