Smith v. Michigan Department of Corrections et al

Filing 22

ORDER denying 19 Motion to Amend/Correct; denying 19 Motion to Reopen Case. Signed by District Judge Robert H. Cleland. (LWag)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JACK G. SMITH-EL,
Plaintiff,
v.

Case No. 11-15342

MICHIGAN DEPARTMENT OF
CORRECTIONS, et al,
Defendants.
/
OPINION AND ORDER DENYING MOTION TO ALTER OR AMEND JUDGMENT
Plaintiff Jack Smith-El is currently confined at the G. Robert Cotton Correctional
Facility in Jackson, Michigan. On December 12, 2011, Magistrate Judge R. Steven
Whalen ordered Plaintiff to provide the addresses of the five defendants named in his
complaint and to provide additional copies of his complaint in order to effect proper
service upon the defendants. Plaintiff was given thirty days to comply.
On December 22, 2011, Plaintiff provided the names and addresses of four
persons whom he named as defendants in addition to the Michigan Department of
Corrections, and filed an amended complaint which was essentially the same as his
original complaint except that it included some additional exhibits. Plaintiff, however,
failed to provide sufficient copies of his complaint. On February 3, 2012, the court
dismissed Plaintiff’s complaint without prejudice for lack of prosecution because Plaintiff
had failed to comply with Magistrate Judge Whalen’s deficiency order.

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Plaintiff subsequently filed a motion to amend his complaint, a proposed
supplemental amended complaint, and an ex parte motion for case status. On January
28, 2013, the court denied Plaintiff’s motions. Thereafter, Plaintiff filed a complaint,
which the court construed as a motion to amend the original complaint filed in this
matter, and a motion for appointment of counsel. On October 4, 2013, the court denied
these motions. Plaintiff has now filed a motion to alter or amend judgment, in which he
asks the court to set aside or vacate the February 3, 2012 order dismissing the case
and the January 28, 2013 order denying Plaintiff’s motion to amend the complaint and
denying his ex parte motion.
Plaintiff is not entitled to reconsideration of the court’s February 3, 2012 order or
of the court’s January 28, 2013 order because his present motion to alter or amend
judgment is untimely. Plaintiff signed and dated his motion to alter or amend judgment
on October 21, 2013. Federal Rule of Civil Procedure 59(e) provides that any motion to
alter or amend a judgment shall be filed no later than twenty eight days after entry of the
judgment. See Shuler v. Garrett, 715 F. 3d 185, 186 (6th Cir. 2013). Absent evidence
to the contrary, a federal court will assume, pursuant to the “prison mailbox rule,” that a
prisoner gave his pleadings to prison officials on the date he signed it. See, e.g.,
Hudson v. Martin, 68 F. Supp. 2d 798, 799, n. 2 (E.D. Mich. 1999). However, applying
the prison mailbox rule and even excluding Saturdays, Sundays, and legal holidays from
the computation, Plaintiff’s motion to alter or to amend judgment was due no later than
March 14, 2012 with respect to the court’s February 3, 2012 order and no later than
March 7, 2013 with respect to the court’s January 28, 2013 order. With respect to both

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orders, Plaintiff’s motion comes over seven months late. The motion to alter or to
amend judgment is therefore untimely.1
District courts do not have discretion to enlarge the time for filing a motion to alter
or amend judgment brought under Rule 59(e). See FHQ Equities, LLC v. MBL Life
Assurance Corp., 188 F. 3d 678, 682 (6th Cir. 1999). A district court judge is also
without power to enlarge the time for making motions for reconsideration of his orders.
See Denley v. Shearson/American Express, Inc., 733 F. 2d 39, 41 (6th Cir. 1984).
Simply put, the court lacks jurisdiction to entertain Plaintiff’s motion to alter or amend
judgment because his motion was filed more than twenty eight days after the court’s
February 3, 2012 order summarily dismissing Plaintiff’s civil rights complaint and more
than twenty eight days after the court’s January 28, 2013 order denying his motion to
amend the complaint and denying his ex parte motion for case status. See, e.g., Allen
v. Hemingway, 24 Fed. App’x. 346, 347 (6th Cir. 2001). Accordingly,
IT IS ORDERED that Plaintiff’s motion to alter or amend (Dkt. # 19) is DENIED.

s/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE
Dated: July 24, 2014

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Although the motion to alter or amend judgment was filed within 28 days of the
court’s October 4, 2013 order denying the motions to amend the complaint and for
appointment of counsel, Plaintiff does not challenge this order in his motion. He only
challenges the two earlier orders.
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I hereby certify that a copy of the foregoing document was mailed to counsel of record
on this date, July 24, 2014, by electronic and/or ordinary mail.
s/Lisa Wagner
Case Manager and Deputy Clerk
[phone]

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