Price v. Stephenson et al

Filing 46

ORDER Denying 42 Motion for Reconsideration. Signed by District Judge Thomas L. Ludington. (KWin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
TYRONE PRICE,
Plaintiff,
v.

Case No. 16-cv-13434
Honorable Thomas L. Ludington
Magistrate Judge Anthony P. Patti

SCOTT STEPHENSON, et al.,
Defendants.
__________________________________________/
ORDER DENYING MOTION FOR RECONSIDERATION
On September 21, 2016, Plaintiff filed a pro se complaint under 42 U.S.C. § 1983
alleging that various officials and employees of the Midland County Jail violated his first
amendment rights by opening his legal mail outside of his presence and withholding his outgoing
legal mail. On January 3, 2017, pretrial matters were referred to Magistrate Judge Anthony Patti.
Defendants moved to dismiss and, in the alternative, for summary judgment on March 6, 2017.
Plaintiff moved for appointment of counsel on June 26, 2017, and the motion was denied. On
November 6, 2017, Judge Patti issued a report recommending that Defendants’ motion to dismiss
be granted and that Plaintiff’s complaint be dismissed. Plaintiff sought and received an extension
of time to file objections to the report and recommendation, and filed his objections on
November 27, 2017. On November 6, 2017, Plaintiff filed a “(Motion for a Supplement) A
Preliminary Injunction For Relief From Deliberate Indifference.” ECF No. 31. The proposed
supplemental pleading sought monetary damages. ECF No. 31.
On February 21, 2018, the Court entered an order adopting Judge Patti’s report and
recommendation, and dismissing the complaint. ECF No. 35. The Court noted that Plaintiff had
not disputed Judge Patti’s conclusion that Plaintiff’s claim for injunctive relief was moot because

he was no longer being held at the Midland County Jail. The Court also denied his motion to
amend to add a claim for monetary damages because: 1) the motion was unnecessarily delayed,
and 2) the amendment would be futile because the proposed amended complaint failed to state a
claim against Defendants in their official capacities. On March 5, 2018, Plaintiff filed a letter
indicating that he is now being held at the Midland County Jail again. ECF No. 38.
On May 16, 2018, Plaintiff filed a motion for reconsideration, in which he also indicated
that he now resides at the Midland County Jail again. ECF No. 42. In his motion, Plaintiff alleges
his legal mail was once again opened outside his presence on May 6, 2018. Plaintiff also alleges
various other wrongs by jail officials including: 1) retaliating against him for by issuing frivolous
tickets in violation of his first amendment rights; 2) depriving him of access to the commissary
store and law library; 3) putting him in the hole based on false allegations that he flashed female
inmates.
Pursuant to Eastern District of Michigan Local Rule 7.1(h), a party can file a motion for
reconsideration of a previous order, but must do so within fourteen days. 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 correcting 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). “[T]he Court will not grant motions for
rehearing or reconsideration that merely present the same issues ruled upon by the Court, either
expressly or by reasonable implication.” E.D. Mich. L.R. 7.1(h)(3). See also Bowens v. Terris,
2015 WL 3441531, at *1 (E.D. Mich. May 28, 2015).

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Plaintiff’s motion was not filed for nearly three months after the entry of the order in
question, and the motion is therefore untimely. Plaintiff’s letter dated March 5 was filed within
14 days. However, even if the letter could be construed as a motion for reconsideration, Plaintiff
would not be entitled to relief. The fact that Plaintiff is now being housed in the Midland County
Jail again does not render the Court’s decision erroneous. There was no indication on the record
at the time the Court’s order was issued that Plaintiff was again being held in the Midland
County Jail. Rather, all indications were to the contrary. Indeed, Plaintiff acknowledge as much
in his response to the motion to dismiss: “Petitioner asserts his claim for Injunctive Relief is
moot since he no longer is housed at Midland county Jail.” Resp. at 6, ECF No. 26.
Moot questions are not justiciable and courts do not rule on such questions in order to
avoid issuing advisory opinions. A case is not moot, however, even though the factual
controversy is over, if the case involves wrongs “capable of repetition, yet evading review.”
United States v. Peters, 754 F.2d 753, 757 (7th Cir. 1985). This doctrine does not provide
Plaintiff any relief here, however. There was no indication at the time the Court issued its order
that Plaintiff might end up back at the Midland County Jail. The circumstances by which he was
transferred out of Midland County Jail and back were (and still are) unknown. Plaintiff made no
argument that the wrong was capable of repetition. In fact, Plaintiff himself acknowledged that
his claim for injunctive relief was moot.
Plaintiff now seeks reconsideration on the grounds that jail officials are opening his legal
mail again without him being present. He also alleges a variety of other wrongful acts. These
factual allegations do not undermine the validity of the Court’s order, which was based only on
the facts known at the time the order was issued. New wrongs committed after the entry of
Judgment are not grounds to seek reconsideration of the Court’s order.

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Plaintiff’s motion for reconsideration reads much like a new complaint. To the extent
Plaintiff believes he can, via a motion for reconsideration, assert a new cause of action for
wrongful acts that occurred after the entry of judgment in this case (including claims against new
defendants), he is mistaken. The proper approach is for Plaintiff to file a new complaint (not on
the present docket) with the clerk’s office in Detroit1, who will assign him a new case number.
Accordingly, it is ORDERED, that the motion for reconsideration, ECF No. 42, is
DENIED.2

s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge
Dated: June 4, 2018

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 June 4, 2018.
s/Kelly Winslow
KELLY WINSLOW, Case Manager

1

Theodore Levin U.S. Courthouse, 231 W. Lafayette Blvd., Detroit, MI 48226.
Contemporaneously with his motion for reconsideration, Plaintiff also filed an application to proceed in the district
court without prepaying fees or costs. ECF No. 44. Plaintiff has already filed such an application on September 21,
2016, contemporaneously with his complaint, and the application was granted. ECF Nos. 2, 6.
2

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