Ward v. Wolfenbarger

Filing 236

OPINION and ORDER granting 220 Motion to Extend; denying 221 Motion for Reconsideration; denying 222 Amended Motion for Reconsideration; denying 223 Motion to Alter the Number of Interrogatories; denying 224 the Pro Per Supplemental Bri ef in Support of the Motion for Reconsideration; denying 226 Motion to Strike; denying 227 Motion to Compel; denying 229 Motion for a Discovery Conference; denying 230 Motion for a Settlement Conference; granting 231 Motion to Expand the Record; denying 232 Motion for a Special Master. Signed by District Judge Arthur J. Tarnow. (CPic)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MICHAEL CHARLES WARD,
Petitioner,

Civil Nos. 03-CV-72701/72858-DT
HONORABLE ARTHUR J. TARNOW
UNITED STATES DISTRICT JUDGE

v.
HUGH WOLFENBARGER,
Respondent,
____________________________/

OPINION AND ORDER DENYING THE MOTION FOR RECONSIDERATION
[Dkt. # 221], THE AMENDED MOTION FOR RECONSIDERATION [Dkt. # 222],
THE MOTION TO ALTER THE NUMBER OF INTERROGATORIES [Dkt. # 223],
THE PRO PER SUPPLEMENTAL BRIEF IN SUPPORT OF THE MOTION FOR
RECONSIDERATION [Dkt. # 224], THE MOTION TO STRIKE [Dkt. # 226], THE
MOTION FOR DISCOVERY [Dkt. # 227], THE MOTION FOR JOINDER [Dkt. #
228], THE MOTION FOR A DISCOVERY CONFERENCE [Dkt. # 229], THE
MOTION FOR A SETTLEMENT CONFERENCE [Dkt. # 230], AND THE
MOTION FOR A SPECIAL MASTER [Dkt. # 232], AND GRANTING THE
MOTION FOR AN EXTENSION OF TIME TO FILE A BRIEF [Dkt. # 220] AND
THE MOTION TO EXPAND THE RECORD [Dkt. # 231].
On July 14, 2014, this case was remanded by the United States Court of
Appeals from the Sixth Circuit for a determination of whether petitioner’s 1971
convictions, which this Court had ordered expunged, were still being used by the
Michigan Department of Corrections (M.D.O.C.) to classify petitioner and to
determine his parole eligibility on his 1981 conviction. On July 18, 2014, the
Federal Defender Office was appointed to represent petitioner and briefing
deadlines were set.
1

On December 7, 2015, the Court granted the motion for discovery and
ordered the M.D.O.C. to turn over all parole board and other correctional records
pertaining to petitioner so that counsel could determine whether petitioner’s
expunged 1971 convictions are being used to either classify petitioner or
determine his parole eligibility. On November 13, 2015, petitioner’s counsel
received 6,632 pages of material from the M.D.O.C. The M.D.O.C., however,
refused to turn over certain documents which they claim are exempt from
disclosure under Michigan law. This Court ordered that the M.D.O.C. turn over
this information to petitioner’s counsel. Petitioner’s counsel received a CD-Rom
of this additional information subsequent to the order.
Petitioner’s counsel filed a second motion for discovery, which this Court
denied on October 27, 2016.
Petitioner’s counsel has now filed two motions for reconsideration.
Petitioner has also filed several pro se motions for discovery or to submit
interrogatories, a motion for a discovery conference, and a motion for a
settlement conference, which are construed as motions for reconsideration of the
Court’s previous order to deny additional discovery. Petitioner has also filed a
motion to strike, a motion for joinder of parties, and a motion for a special master.
The Court denies these motions. Petitioner has also filed motions for an
extension of time to file his brief and to expand the record. These motions will be
granted.
2

The Court will deny petitioner’s motions for reconsideration of the order
denying additional discovery. U.S. Dist.Ct. Rules, E.D. Mich. 7.1 (h) allows a
party to file a motion for reconsideration. A motion for reconsideration should be
granted if the movant demonstrates a palpable defect by which the court and the
parties have been misled and that a different disposition of the case must result
from a correction thereof. Ward v. Wolfenbarger, 340 F. Supp. 2d 773, 774 (E.D.
Mich. 2004). A motion for reconsideration which merely presents “the same
issues ruled upon by the Court, either expressly or by reasonable implication,”
shall be denied. Id.
Petitioner’s motions for reconsideration will be denied, because petitioner is
merely presenting issues which were already ruled upon by this Court, either
expressly or by reasonable implication, when the Court denied petitioner’s
request for additional discovery.
Petitioner has also filed a motion to strike the respondent’s pleadings as
scandalous because they contain false and misleading information that
petitioner’s parole was revoked “for a mix of alcohol, children, nudity, and
pornography.”
Fed. R. Civ. P. 12(f) indicates that pleadings can be stricken if they contain
“immaterial, impertinent, or scandalous matter.” The Parole Board’s reasons for
revoking petitioner’s parole may be relevant to resolution of petitioner’s claim that
the Parole Board is using his expunged criminal convictions to deny him parole,
3

thus, the Court denies the motion to strike the pleadings.
Petitioner has filed a motion to join the State of Michigan, the Michigan
Parole Board, and the Department of Corrections as parties to this petition.
The only proper respondent in a habeas case is the habeas petitioner’s
custodian, which in the case of an incarcerated habeas petitioner would be the
warden of the facility where the petitioner is incarcerated. See Edwards v. Johns,
450 F. Supp. 2d 755, 757 (E.D. Mich. 2006); See also Rule 2(a), 28 foll. U.S.C. §
2254. Petitioner’s warden is already named as the respondent in this action. It is
unnecessary to add the additional parties to the case. The motion for joinder is
denied.
Petitioner has also filed a motion for the appointment of a special master.
28 U.S.C. § 2243 does not authorize the appointment of a Special Master in
habeas corpus cases. See Payne v. Wingo, 442 F.2d 1192 (6th Cir.1971). The
motion to appoint a special master is denied.
Petitioner filed a motion for an extension of time to file his supplemental
brief. In light of the additional time needed to adjudicate the motions herein, the
Court grants petitioner an additional 60 days to file his supplemental brief.
Petitioner has also filed a motion to expand the record.
Rule 7 (a) of the Rules Governing § 2254 Cases, 28 U.S.C. foll. § 2254,
indicates that if a habeas petition is not summarily dismissed, the district court
judge “may direct the record be expanded by the parties by the inclusion of
4

additional materials relevant to the determination of the merits of the petition.” A
federal district court judge may employ a variety of measures to avoid the
necessity of an evidentiary hearing in a habeas case, including the direction to
expand the record to include evidentiary materials that may resolve the factual
dispute without the need for an evidentiary hearing. Blackledge v. Allison, 431
U.S. 63, 81-82 (1977). The decision whether to expand a habeas record is within
the sound discretion of the district court. See West v. Bell, 550 F.3d 542, 551 (6th
Cir. 2008).
In the present case, petitioner asks the Court to expand the record to
include materials which may support his claims. Because this evidence may help
resolve any factual disputes in this case, the Court will permit the court record to
be expanded to include the exhibits that petitioner and his counsel filed with his
various motions.
ORDER
Based upon the foregoing, IT IS ORDERED that the motion for
reconsideration [Dkt. # 221], the amended motion for reconsideration [Dkt. # 222],
the motion to alter the number of interrogatories [Dkt. # 223], the pro per motion
brief in support of the motion for reconsideration [Dkt. # 224], the motion to strike
[Dkt. # 226], the motion for discovery [Dkt. # 227], the motion for joinder [Dkt. #
228], the motion for a discovery conference [Dkt. # 229], the motion for a
settlement conference [Dkt. # 230], and the motion for a special master [Dkt. #
5

232] are DENIED.
IT IS FURTHER ORDERED that the motion for an extension of time to file
a reply brief [Dkt. # 220] and the motion to expand the record [Dkt. # 231] are
GRANTED.

S/Arthur J. Tarnow
Arthur J. Tarnow
Senior United States District Judge
Dated: November 17, 2016
I hereby certify that a copy of the foregoing document was served upon counsel
of record on November 17, 2016, by electronic and/or ordinary mail.
S/Catherine A. Pickles
Judicial Assistant

6