Annabel v. Heyns et al
ORDER DENYING Plaintiff's 87 Motion to Compel--Signed by Magistrate Judge Paul J. Komives. (MWil)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
CASE NO. 2:12-CV-13590
JUDGE SEAN F. COX
MAGISTRATE JUDGE PAUL J. KOMIVES
DANIEL HEYNS, et al.,
MEMORANDUM ORDER DENYING PLAINTIFF’S RULE 60(b) MOTION AND/OR
RENEWED MOTION TO COMPEL SUBPOENA (docket #87)
Plaintiff Robert Annabel is a state prisoner who, at the times relevant to his action, was
incarcerated at the Ionia Maximum Correction Facility in Ionia, Michigan; the Woodland
Correctional Center in Whitmore Lake, Michigan; the Michigan Reformatory in Ionia, Michigan;
and the Gus Harrison Correctional Facility in Adrian, Michigan. Plaintiff commenced this action
on August 14, 2012, by filing a pro se civil rights complaint pursuant to 42 U.S.C. §§ 1983, 1985(3),
and Title II of the Americans with Disabilities Act. On March 24, 2014, the Court entered an Order
addressing various discovery motions filed by plaintiff. As relevant here, the Court granted in part
and denied in part plaintiff’s motion to compel a subpoena directed to MDOC Director Daniel
Haynes, which sought: (1) the complete medical and mental health records of plaintiff; (2) all
critical incident reports involving plaintiff; (3) video recordings of any forced cell moves; and (4)
the audio recording or a written transcription of the February 15, 2012 panel hearing. Specifically,
the Court granted the motion to compel with respect to either an audio recording or written transcript
of the February 15, 2012, panel hearing, and denied the motion with respect to the balance of the
The matter is before the Court on plaintiff’s motion for reconsideration.1 A motion for
reconsideration must be filed within 14 days after entry of the judgment or order for which
reconsideration is being sought. See E.D. Mich. LR 7.1(h)(1). Here, the Court’s Order was entered
on March 24, 2014. Even assuming that petitioner’s motion for reconsideration was given to prison
officials for mailing on April 11, 2014 (as is dated by plaintiff), the motion is untimely. Moreover,
a motion for reconsideration will generally not be granted where the motion “merely present[s] 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 . . . have been misled
but also show that correcting the defect will result in a different disposition of the case.” E.D. Mich.
LR 7.1(h)(3). A “palpable defect” is “a defect that is obvious, clear, unmistakable, manifest, or
plain.” United States v. Cican, 156 F. Supp. 2d 661, 668 (E.D. Mich. 2001) (Gadola, J.); accord
Ososki v. St. Paul Surplus Lines Ins. Co., 162 F. Supp. 2d 714, 718 (E.D. Mich. 2001) (Lawson, J.).
Here, plaintiff has pointed to no such palpable defect. As explained in the Order, because the only
claim remaining before the Court is plaintiff’s claim against defendant Dinsa alleging improper
reduction of his lithium and unnecessary forced medication, the critical incident reports and video
recordings of cell moves are simply not relevant. With respect to plaintiff’s medical records, as
explained in the Order these records may be obtained by plaintiff pursuant to MDOC POLICY
DIRECTIVE 03.04.108, ¶ S, and neither a party to the action nor the MDOC is obligated to fund
Plaintiff’s motion is styled as one for relief from judgment under FED. R. CIV. P. 60(b).
However, “by its own terms, Rule 60(b) is limited to relief from a ‘final judgment or order.’” McKay v.
Novartis Pharm. Corp., 751 F.3d 694, 701 (5th Cir. 2014) (internal quotation omitted); see also, Penn West
Assocs., Inc. v. Cohen, 371 F.3d 118, 125 (3d Cir. 2004). Because a discovery order is not a final judgment
or order, Rule 60 is inapplicable, and plaintiff’s motion must be construed as a motion for
reconsideration. See Keys v. Carroll, No. 3:10-CV-1570, 2012 WL 1191620, at *1 (M.D. Pa. Apr. 10,
2012); U.S. Fidelty & Guar. Co. v. Braspetro Oil Servs. Co., No. 97 Civ. 6124, 2001 WL 79899, at *1 n.2
(S.D.N.Y. Jan. 30, 2001).
plaintiff’s discovery efforts by providing free copies.
Because plaintiff’s motion for reconsideration is untimely, and because he has failed to show
any palpable defect in the Court’s Order granting in part and denying in part his motion to compel,
it is ORDERED that plaintiff’s Rule 60(b) motion is hereby DENIED. The attention of the parties
is drawn to FED. R. CIV. P. 72(a), which provides a period of fourteen days from the date of this
Order within which to file any objections for consideration by the District Judge as may be
permissible under 28 U.S.C. § 636(b)(1).
IT IS SO ORDERED.
Dated: November 17, 2014
s/Paul J. Komives
PAUL J. KOMIVES
UNITED STATES MAGISTRATE JUDGE
I hereby certify that a copy of the forgoing document was sent to parties of record on November 17,
2014, electronically and/or by U.S. mail.
Case Manager for the
Honorable Paul J. Komives
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