Haney v. Fifth Eastern District Police Department et al

Filing 9

ORDER denying plaintiff's Motion for reconsideration 7 ; dismissing three John Doe defendants without prejudice; dismissing the complaint and denying as moot 8 Motion to Appoint Counsel. Signed by District Judge George Caram Steeh (MBea)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

DAVID M. HANEY,
Plaintiff,
Case No. 12-14684
vs.
HON. GEORGE CARAM STEEH
5TH EASTERN DISTRICT
POLICE DEPARTMENT, et al.,
Defendants.
____________________________/
ORDER DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION [DOC. 7];
DISMISSING THREE JOHN DOE DEFENDANTS WITHOUT PREJUDICE;
DISMISSING THE COMPLAINT; AND DENYING AS MOOT
PLAINTIFF’S MOTION FOR APPOINTMENT OF COUNSEL [DOC. 8]
Plaintiff brings the present motion pursuant to Fed. R. Civ. P. 59(e), seeking to
alter or amend the order granting partial summary dismissal of the named defendants,
and requiring plaintiff to provide the names of the unnamed defendants. Rule 59
provides for a motion to alter or amend a judgment, and no judgment has entered in this
case as of yet. The relief sought by plaintiff is in the form of a motion for
reconsideration, which is how the court will construe plaintiff’s motion. The Local Rules
of the Eastern District of Michigan provide that a party may seek reconsideration of an
order or judgment where there has been a palpable defect by which the court has been
misled. L.R. 7.1(h). Such a motion for reconsideration must be filed within 14 days
after entry of the judgment or order.

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The order from which plaintiff seeks reconsideration was filed on November 5,
2012, so the deadline for filing a timely motion for reconsideration was November 19,
2012. Even applying the prisoner mailbox rule, plaintiff’s motion filed on December 3,
2012 was untimely. See Vandiver v. Correctional Medical Services, Inc., 2006 WL
2516902, *1 (E.D. Mich. 2006) (citations omitted) (discussion of prisoner mailbox rule).
Beyond the fact that plaintiff’s motion for reconsideration is untimely, the motion
itself does not identify a palpable defect by which the court has been misled. Plaintiff
fails to show that the court erred in finding that the complaint, as filed, failed to state a
plausible claim for relief against any of the dismissed defendants.
Plaintiff attaches several documents to his motion and sets forth several
statements from some of the dismissed defendants that he asserts, when added to his
complaint, states a plausible claim against those defendants. To the extent that plaintiff
is seeking to amend the complaint, this court is without power to permit such an
amendment. If a complaint falls within the requirements of 28 U.S.C. § 1915(e)(2) when
it is filed, a district court should sua sponte dismiss the complaint. McGore v.
Wrigglesworth, 114 F.3d 601, 612 (6th Cir. 1997). Moreover, under the Prison Litigation
Reform Act, a district court has no discretion to amend a complaint to avoid a sua
sponte dismissal. Id.; see also Cantley v. Armstrong, 391 F. App’x 505, 507 (6th Cir.
2010) (“district courts are not to permit plaintiffs to amend a complaint to avoid
dismissal”) (quoting Benson v. O'Brian, 179 F.3d 1014, 1016 (6th Cir. 1999)).
Accordingly, the court will not permit plaintiff to amend his pleadings to avoid sua sponte
dismissal of his complaint.

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The November 5, 2012 order of this court gave plaintiff forty-five days, until
December 20, 2012, to provide the names of the three John Doe defendants, as well as
to provide three copies of the complaint and attachments, so that service could be made
upon the three defendants. Plaintiff has failed to comply with the court’s order, so
dismissal of the three John Doe defendants without prejudice is appropriate.
As the dismissal of the three remaining John Doe defendants leaves no
defendants remaining in the matter, the court will also dismiss the complaint.
WHEREFORE, IT IS HEREBY ORDERED that plaintiff’s motion for
reconsideration [DOC. 7] is DENIED.
IT IS HEREBY FURTHER ORDERED that plaintiff’s complaint is DISMISSED
WITHOUT PREJUDICE as to the three remaining John Doe defendants.
Plaintiff’s motion to appoint counsel [DOC. 8] is DENIED AS MOOT.
The complaint is DISMISSED. This case is CLOSED.
So ordered.
Dated: March 11, 2013
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
March 11, 2013, by electronic and/or ordinary mail and also
on David Haney #209628, Oaks Correctional Facility,
1500 Caberfae Highway, Manistee, MI 49660.
s/Barbara Radke
Deputy Clerk

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