Bills v. Romanowski et al

Filing 9

OPINION and ORDER denying 8 MOTION for Reconsideration Signed by District Judge Gerald E. Rosen. (SBur)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

RICKY BILLS,
Plaintiff,

Case Number: 2:15-CV-11417
HON. GERALD E. ROSEN

v.
K. ROMANOWSKI, ET AL.,
Defendant.
/
OPINION AND ORDER DENYING MOTION FOR RECONSIDERATION
This matter is presently before the Court on Plaintiff’s Motion for
Reconsideration of the Court’s Order of Summary Dismissal.
The requirements for the granting of motions for reconsideration are set
forth in Eastern District of Michigan Local Rule 7.1(h), which provides in relevant
part:
Generally, and without restricting the court’s discretion, the court will
not grant motions for rehearing or reconsideration that merely present
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 and other persons
entitled to be heard on the motion have been misled but also show
that correcting the defect will result in a different disposition of the
case.

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L.R. 7.1(h)(3).
As provided in LR 7.1(h)(3), in order to prevail on a motion for
reconsideration, the movant must not only demonstrate a palpable defect by which
the Court has been misled, he must also show that a different disposition of the
case must result from a correction of that defect. A “palpable defect” is “a defect
that is obvious, clear, unmistakable, manifest or plain.” United States v. Lockette,
328 F. Supp. 2d 682, 684 (E.D. Mich. 2004). Moreover, a motion that merely
presents the same issues already ruled upon by the
Court -- either expressly or by reasonable implication -- will not be granted. L.R.
7.1(h)(3); see also Flanagan v. Shamo, 111 F. Supp. 2d 892, 894 (E.D. Mich.
2000).
Fed. R. Civ. P. 59(e) also may be used as a vehicle for seeking
reconsideration of a court’s prior ruling. Generally, there are three situations which
justify reconsideration under Rule 59(e): (1) to correct a clear error of law; (2) to
account for newly discovered evidence; (3) to accommodate an intervening change
in controlling law; or (4) to prevent manifest injustice. Intera Corp. v. Henderson,
428 F.3d 605, 620 (6th Cir. 2005); see also GenCorp, Inc. v. Am. Int’l
Underwriters, 178 F.3d 804, 834 (6th Cir. 1999). However, like the Local Rule,
motions under Rule 59(e) “are not intended as a vehicle to relitigate previously
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considered issues; should not be utilized to submit evidence which could have been
previously submitted in the exercise of reasonable diligence; and are not the proper
vehicle to attempt to obtain a reversal of a judgment by offering the same
arguments previously presented.” Kenneth Henes Special Projects Procurement v.
Continental Biomass Industries, Inc., 86 F. Supp. 2d 721, 726 (E.D. Mich. 2000).
“A motion to alter or reconsider a judgment is an extraordinary remedy and should
be granted sparingly.” Plaskon Elec. Materials, Inc. v. Allied-Signal, Inc., 904 F.
Supp. 644, 669 (N.D. Ohio 1995); United States v. Limited, Inc., 179 F.R.D. 541,
547 (S.D. Ohio 1998) (citing Sussman v. Salem, Saxon & Nielsen, P.A ., 153 F.R.D.
689, 694 (M.D. Fla. 1994), Pennsylvania Ins. Guar. Ass’n v. Trabosh, 812 F. Supp.
522, 524 (E.D. Pa.1992)).
By application of the Local Rule and foregoing authorities, the Court will
deny Plaintiff’s Motion for Reconsideration. By this motion, Plaintiff is merely
attempting to obtain a reversal of the Court’s decision by presenting issues already
ruled upon, if not expressly, at least, by reasonable implication. Plaintiff seeks
reversal of the Court’s summary dismissal of his § 1983 complaint. The Court
summarily dismissed Plaintiff’s complaint because his dispute about the
substitution of a German chocolate cake for a pecan pie he had ordered through a
prison fundraiser instead of being refunded the $9.50 he had paid did not present a
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constitutional claim.
Plaintiff does not dispute that his claim is essentially one for the loss of
personal property, i.e., the $9.50 he spent on the pecan pie. As the Court explained
in its August 24, 2015 Order, a prisoner’s claim for the loss of personal property
fails to state a claim under § 1983 when the state provides an adequate postdeprivation remedy. As was the case when the Court originally addressed this
matter, Plaintiff has not shown in the present motion that Michigan’s judicial
remedies are inadequate or that it would be futile to present his claim in the
Michigan state courts. Plaintiff has an adequate remedy in the state courts. See
Copeland v. Machulis, 57 F.3d 476 (6th Cir. 1995). It was for these reasons that
the Court determined that Plaintiff has failed to state a claim upon which relief may
be granted under § 1983, and dismissed Plaintiff’s complaint pursuant to 28 U.S.C.
§ 1915(e).

Plaintiff fails to demonstrate that the Court’s decision was based upon

a palpable defect by which the Court was misled. Therefore, the Court denies
Plaintiff’s request for reconsideration of this matter.
The Court will also deny leave to appeal this decision in forma pauperis. An
appeal may not be taken in forma pauperis if the court determines that it is not
taken in good faith. 28 U.S.C. § 1915(a)(3). The Supreme Court has interpreted
“good faith” as stated in § 1915 as “not frivolous”. Coppedge v. United States, 369
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U.S. 438, 445-446 (1962). The Supreme Court has further defined a “frivolous”
action as one that “lacks an arguable basis either in law or in fact.” Neitzke v.
Williams, 490 U.S. 319, 109 S.Ct. 1827, 1831 (1989).
For the reasons stated in this Court’s Opinion and Order of August 24, 2015,
Petitioner’s Section 1983 claims are factually and/or legally deficient. The Court,
therefore, makes the finding that Plaintiff’s claims are frivolous because they lack
an arguable basis in law or fact. Accordingly, this Court determines that any
appeal from the Court’s decision would be frivolous and, therefore, hereby certifies
that an appeal would not taken in good faith. Therefore, pursuant to 28 U.S.C. §
1915(a)(3), the Court determines that Plaintiff’s appeal may not be taken in forma
pauperis.
For all of the foregoing reasons,
IT IS HEREBY ORDERED that Plaintiff’s Motion for Reconsideration
[Dkt. # 8] is DENIED. Leave to appeal this decision in forma pauperis is also
DENIED.

s/Gerald E. Rosen
Chief Judge, United States District Court

Dated: September 23, 2015
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I hereby certify that a copy of the foregoing document was served upon the parties
and/or counsel of record on September 23, 2015, by electronic and/or ordinary
mail.
s/Julie Owens
Case Manager, [phone]

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