Smith v. Stephens et al

Filing 74

OPINION and ORDER denying 71 Motion to Amend/Correct and Issuing an Amended Judgment to Correct a Clerical Error. Signed by District Judge Paul D. Borman. (DTof)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
SAM SMITH,
Plaintiff,
Case No. 10-13763
v.
Paul D. Borman
United States District Judge
LEERAY STEPHENS,
JOHN DOE, ALI MUHAMMAD,
ALICIA SMITH, BRIAN STAIR,
and KYM WORTHY,

Paul J. Komives
United States Magistrate Judge

Defendants.
_____________________________/

OPINION AND ORDER
(1) DENYING PLAINTIFF’S MOTION TO ALTER OR AMEND THIS COURT’S
SEPTEMBER 10, 2012 OPINION AND ORDER GRANTING DEFENDANTS’ MOTIONS
FOR SUMMARY JUDGMENT (Dkt. No. 71), and
(2) ISSUING AN AMENDED JUDGMENT TO CORRECT A CLERICAL ERROR
On September 10, 2012, the Court entered an Opinion and Order (1) Adopting the Magistrate
Judge’s March 2, 2012 Report and Recommendation, (2) Adopting the Magistrate Judge’s March
8, 2012 Report and Recommendation, (3) Granting in Part and Denying in Part Defendant Worthy’s
Motion to Dismiss, (4) Granting Defendants’ Motion for Summary Judgment, and (5) Granting
Defendant Worthy’s Second Motion for Summary Judgment. (Dkt. No. 68.)
Plaintiff filed a Second Motion to Amend Complaint on September 14, 2012. (Dkt. No. 70.)
On September 20, 2012, Plaintiff filed a Motion to Alter or Amend This Court’s September 10, 2012
Opinion and Order Granting Defendants’ Motions for Summary Judgment. (Dkt. No. 71.) The
Court denied Plaintiff’s Second Motion to Amend Complaint on September 24, 2012. (Dkt. No. 72.)
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Plaintiff argues that the Court erred in granting Defendants’ motions for summary judgment
because Plaintiff’s Second Motion to Amend Complaint contained a meritorious argument that
undermined the arguments based on Heck v. Humphrey, 512 U.S. 477 (1994), put forth by
Defendants. The Court construes Plaintiff’s motion as a motion for reconsideration pursuant to
Eastern District of Michigan Local Rule 7.1(h)(3), which states in pertinent part:
Generally, and without restricting the court's discretion, the 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. The movant must
not only demonstrate a palpable defect by which the court and the parties and other
persons entitled to be heard on the motion have been misled but also show that
correcting the defect will result in a different disposition of the case.
E.D. Mich. L.R. 7.1(h)(3). “A ‘palpable defect’ is a defect which is obvious, clear, unmistakable,
manifest, or plain.” Ososki v. St. Paul Surplus Lines Ins. Co., 162 F. Supp. 2d 714, 718 (E.D. Mich.
2001).
In its September 10, 2012 Opinion and Order, the Court held that Plaintiff’s federal claims
were barred under the United States Supreme Court decision in Heck v. Humphrey, supra, because
Plaintiff’s claims are based on allegedly perjured testimony that resulted in Plaintiff’s imprisonment
for two gun possession parole violations. (Sept. 10, 2012 Op. and Order at 7-8.) Plaintiff admitted
at his deposition that the gun possession charges were the reason he received a five-year prison
sentence. Plaintiff argues in the instant motion that the Court erred in finding that Plaintiff’s claims
were barred by Heck v. Humphrey, “because Plaintiff has now fully served the five-year parole
violation and thus, success on Plaintiff’s 1983 claims against [Defendant] Worthy could not possibly
lead to his speedier release.” (Pl.’s Mot. to Alter or Amend at 2.)
The Court notes, however, that Plaintiff is still incarcerated. Furthermore, the Parole Board
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Notice of Decision dated March 2, 2012, which Plaintiff attached to his Second Motion to Amend
Complaint, listed among the reasons supporting the decision to deny parole that Plaintiff’s crime and
criminal behavior “[i]nvolved a dangerous weapon(s).” (Pl.’s Second Mot. to Amend Compl., Ex.
A-2.) Although Plaintiff may have served the five-year minimum for his weapons violations, he
continues to be incarcerated for these violations. Plaintiff’s § 1983 claims thus seek to invalidate
at least one of the reasons for Plaintiff’s current incarceration and have more than a mere potential
to affect the amount of time he serves in prison. Plaintiff has therefore failed to demonstrate any
palpable defect in this Court’s September 10, 2012 Opinion and Order holding that Plaintiff’s claims
are barred under Heck v. Humphrey.
Plaintiff also argues that the Court erred by ruling on Defendant Worthy’s motion when it
was untimely filed. The Court notes that the Heck v. Humphrey argument was fully briefed and
argued in Defendants Stephens, Stair, Muhammad and Smith’s August 17, 2011 Motion for
Summary Judgment. (Dkt. No. 41.) Although Defendant Worthy did not adopt this argument until
after the dispositive motion deadline, the Heck v. Humphrey arguments raised by the other
Defendants in this matter apply equally to the federal claims asserted against Defendant Worthy.
Thus, Plaintiff has not demonstrated that the Court’s grant of summary judgment in favor of
Defendant Worthy constitutes a palpable defect.
Plaintiff also notes that the September 10, 2012 Judgment in this matter is incorrectly dated
“August 9, 2012.” The Court will issue an Amended Judgment to correct this clerical error.

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Accordingly, for the reasons stated above, Plaintiff’s Motion to Alter or Amend This Court’s
September 10, 2012 Opinion and Order Granting Defendants’ Motions for Summary Judgment is
DENIED.
IT IS SO ORDERED.

s/Paul D. Borman
PAUL D. BORMAN
UNITED STATES DISTRICT JUDGE
Dated: July 11, 2013
CERTIFICATE 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 July 11, 2013.

s/Deborah Tofil
Case Manager

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