Day v. Standish, City of et al

Filing 8

ORDER denying 7 Motion Requesting Prospective Relief. Signed by District Judge Avern Cohn. (JOwe)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ROBERT A. DAY,

Plaintiffs,

Case No. 11-12664

v.
HON. AVERN COHN
CITY OF STANDISH, ARENAC
COUNTY, BA/ARENAC BEHAVIORAL
HEALTH, KAREN L. NELSON, CURTIS
G. BROGHTON, DUANE HADLY,
GUARDIAN AD LITEM, BONNIE SUE
PILET, JOHN EDWARD PILET, LENNY
MORE, et. al.,
Defendants.
________________________________/
ORDER DENYING MOTION REQUESTING PROSPECTIVE RELIEF (Doc. 7)
I. Introduction
This is a prisoner civil rights case under 42 U.S.C. § 1983. Plaintiff, a state
prisoner, filed a pro se complaint on behalf of himself and his minor daughter. The
complaint named the “City of Standish, Arenac County, Bay/Arenac Behavioral Health,
Karen L. Nelson, Curtis G. Broghton, Duane Hadly, Guardian Ad Litem, Bonnie Sue
Pilet, John Edward Pilet, Lenny More, et al.” as defendants. On July 13, 2011, the
Court dismissed the complaint under 28 U.S.C. § 1915(e)(2) for failing to state a claim
upon which relief can be granted. See Order of Dismissal. Doc. 6.
Before the Court is plaintiff’s motion styled “Motion Requesting Prospective
Relief.” Doc. 7. The motion was filed July 15, 2010, two days before the Court entered
its dismissal order. Thus, plaintiff in all likelihood prepared the motion prior to receiving

the Court’s dismissal order.
However, to the extent the motion is construed as a motion for reconsideration,
the motion is governed by this district’s local rules, which require the movant to “show
both that there is a palpable defect in the opinion and that correcting the defect will
result in a different disposition of the case.” Indah v. United States Securities and
Exchange Commission, __ F.3d __, __, Nos. 09-2117, 09-2570, 10-1477, and 10-1837,
2011 WL 3890226, at *7 (6th Cir. Sept. 6, 2011) (citing what is now E.D. Mich. Local
Rule 7.1(h)(3)). “The local rule also specifically states that merely presenting the same
issues that the court previously ruled on is not an acceptable ground for
reconsideration.” Id. “A ‘palpable defect’ is ‘a defect that is obvious, clear,
unmistakable, manifest, or plain.’ ” United States v. Lockett, 328 F. Supp. 2d 682, 684
(E. D. Mich. 2004) (quoting United States v. Cican, 156 F. Supp. 2d 661, 668 (E. D.
Mich. 2001)).
Plaintiff fails to satisfy this standard. Plaintiff’s motion appears to ask the Court
to grant him communication or “parenting time” with his daughter. However, as
explained in the dismissal order, the federal court is not the proper forum to litigate the
issue of plaintiff’s custodial rights. The Supreme Court has long held that the federal
courts do not have jurisdiction over questions involving divorce, alimony, or child
custody. Barber v. Barber, 62 U.S. (21 How.) 582, 584 (1858). “The whole subject of
the domestic relations of husband and wife, parent and child, belongs to the laws of the
state and not to the laws of the United States.” In re Burrus, 136 U.S. 586, 593-94
(1890). The Supreme Court has consistently held that federal courts lack the power to
issue divorce, alimony and child-custody decrees. See Ankenbrandt v. Richards, 504
2

U.S. 689, 703-07 (1992). “Even when brought under the guise of a federal question
action, a suit whose subject is domestic relations generally will not be entertained in a
federal court.” Firestone v. Cleveland Trust Co., 654 F. 2d 1212, 1215 (6th Cir. 1981).
As such, the Court lacks the power to review or direct any custody or visitation rights
regarding plaintiff and his daughter.
Accordingly, plaintiff’s motion is DENIED.
SO ORDERED.

s/Avern Cohn
AVERN COHN
UNITED STATES DISTRICT JUDGE

Dated: November 28, 2011

I hereby certify that a copy of the foregoing document was mailed to Robert Day,
446361, Saginaw Correctional Facility, 9625 Pierce Road, Freeland, MI 48623 on this
date, November 28, 2011, by electronic and/or ordinary mail.

s/Julie Owens
Case Manager, [phone]

3