Labreck v. Stephenson et al
Filing
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OPINION and ORDER Denying 29 MOTION to Reinstate - Signed by District Judge Laurie J. Michelson. (JJoh)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
PETER LABRECK,
Plaintiff,
Case No. 14-cv-12025
Honorable Laurie J. Michelson
v.
SHERIFF STEPHENSON, CAPTAIN
HARNOIS, and NURSE JANE DOE,
Defendants.
OPINION AND ORDER DENYING PLAINTIFF’S MOTION TO REINSTATE [29]
Before the Court is Plaintiff Peter Labreck’s motion to reinstate this prisoner civil rights
action. (Dkt. 29, Pl.’s Mot.)
Labreck filed this action pro se on May 20, 2014. (Dkt. 1.) The named defendants,
Sheriff Stephenson and Captain Harnois, filed a Motion to Dismiss on September 15, 2014. (See
Dkt. 19.) Magistrate Judge Komives (to whom this Court had referred all pretrial proceedings)
ordered Labreck to respond by October 17, 2014. (Dkt. 21.) Judge Komives also ordered
Labreck to identify defendant Jane Doe Jail Nurse by October 7, 2014 and to file a change of
address notice. (Dkt. 20.) The orders were sent to Labreck’s address of record with the Court (at
the Michigan Department of Corrections’ Macomb Correctional Facility) and to the Muskegon
Correctional Facility, where it appeared that Labreck was incarcerated. (See Sep. 17, 2014
Docket Entries.) An order sent to the Muskegon facility was returned as undeliverable, but the
orders sent to the Macomb facility were not. (See Dkt. 22.)
Labreck failed to respond to the motion to dismiss or to the Magistrate Judge’s orders.
Thus, on November 25, 2014, Magistrate Judge Komives filed a report and recommendation to
dismiss this case. (Dkt. 23.) No objections were filed. This Court adopted the report and
recommendation and dismissed Labreck’s complaint without prejudice on December 18, 2014.
(Dkt. 26.)
Nearly one year later, on October 21, 2015, Labreck filed a “Motion to Reinstate Action
and Change of Address Notice.” He says that he was in custody at the Macomb County Jail from
October 24, 2014 until October 7, 2015. (Pl.’s Mot. at 1.) He claims that during the “entire
period” he was on “suicide watch/high observation” and that “[d]ue to the Macomb County Jail
policy of not allowing ‘suicide watch’/’high observation’ inmates to have pencil, paper,
envelopes, or legal work, Plaintiff had no way what-so-ever to file a change of address notice
with this court, through no fault of his own, and Plaintiff should not be punished/have his action
dismissed for something he had absolutely no control over.” (Id. (emphasis in original).)
A motion to reinstate is “properly construed as a motion for relief from judgment
pursuant to Fed. R. Civ. P. 60(b).” See Jenkins v. Frentner, 173 F.3d 855, *2 (6th Cir. 1999)
(table opinion) (citing Harcon Barge Co. v. D & G Boat Rentals, Inc., 784 F.2d 665, 667 (5th
Cir. 1986)). As Labreck claims that his failure to prosecute was “absolutely” outside of his
control, this is not a case of “excusable neglect” under Rule 60(b)(1). See Pioneer Inv. Servs. Co.
v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 394 (1993) (“[A]t least for the purposes of rule
60(b), ‘excusable neglect’ is understood to encompass situations in which the failure to comply
with a filing deadline is attributable to negligence. . . . [A] party’s failure to file on time for
reasons beyond his or her control is not considered to constitute ‘neglect.’”). The only other
possibly relevant avenue to relief for Labreck is Rule 60(b)(6), which allows a court to relieve a
party from judgment for “any other reason that justifies relief.” But “[r]elief pursuant to Rule
60(b)(6) is available only in exceptional or extraordinary circumstances which are not addressed
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by the first five numbered clauses of the Rule and only as a means to achieve substantial justice.”
Tanner v. Yukins, 776 F.3d 434, 443 (6th Cir. 2015) (internal quotation marks and citations
omitted).
This case does not present exceptional or extraordinary circumstances. Labreck’s own
actions belie his claim that he had “no way whatsoever” to file a change of address form. During
the roughly one year in which Macomb County Jail supposedly cut Labreck off entirely from the
outside world, he in fact managed to initiate three additional lawsuits in this Court. First, on May
27, 2015, he filed a complaint against Citadel Investment Group. See Labreck v. Citadel
Investment Group, Inc., No. 15-cv-11912-GER (E.D. Mich.). Though his complaint in that case
indicates that it was “drafted by Mark Cowans, on behalf of Peter LaBreck, who is on ‘suicide
watch,’” it is clear that Labreck had a means to file during his confinement. Second, Labreck was
one of several named plaintiffs in another lawsuit filed by Cowans on August 3, 2015. See
Cowans v. Dupris, No. 15-cv-12739-TGB (E.D. Mich.). And finally, on September 15, 2015,
while still on suicide watch at Macomb County Jail, Labreck filed yet another lawsuit. See
Labreck v. Sabaugh, No. 15-cv-13303-JCO (E.D. Mich.). While he noted in that complaint that
he was “reliant upon other inmates to prepare [his] filings,” it is clear that he still could file.
If Labreck could pursue three other lawsuits, he could have filed a change of address
notice, or otherwise notified the court of his change in address, and prosecuted this case.
Accordingly, Labreck’s Motion to Reinstate (Dkt. 29) is DENIED.
SO ORDERED.
s/Laurie J. Michelson
LAURIE J. MICHELSON
UNITED STATES DISTRICT JUDGE
Dated: November 30, 2015
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CERTIFICATE OF SERVICE
The undersigned certifies that a copy of the foregoing document was served on the attorneys
and/or parties of record by electronic means or U.S. Mail on November 30, 2015.
s/Jane Johnson
Case Manager to
Honorable Laurie J. Michelson
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