Jackson v. Berghuis

Filing 53

OPINION and ORDER Denying Petitioner's Emergency 49 MOTION for Immediate Release, 51 MOTION for Involuntary Dismissal and 52 MOTION for Reconsideration re 50 Memorandum Opinion & Order. Signed by District Judge Gershwin A. Drain. (TMcg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

DOUGLAS JACKSON,
Case No. 15-cv-11622

Petitioner,

UNITED STATES DISTRICT COURT JUDGE
GERSHWIN A. DRAIN

v.
WARDEN LES PARISH,

UNITED STATES MAGISTRATE JUDGE
MICHAEL J. HLUCHANIUK

Respondent.
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OPINION AND ORDER DENYING PETITIONER’S EMERGENCY
MOTION FOR IMMEDIATE RELEASE [#49], MOTION FOR
INVOLUNTARY DISMISSAL [#51], AND MOTION FOR
RECONSIDERATION [#52]
I. INTRODUCTION
Present before the Court in this habeas action are three Motions: (1)
Petitioner’s Emergency Motion for Immediate Release from Administrative
Segregation [#49], (2) Petitioner’s Motion for Involuntary Dismissal of
Respondent’s Response to Petitioner’s Motion to Compel Meaningful Access to
the Courts [#51], and (3) Petitioner’s Motion for Reconsideration of the Court’s
February 27, 2019 Opinion and Order Denying Petitioner’s Motion to Compel
Meaningful Access to the Courts [#52].

The Court will address each of

Petitioner’s Motions in turn. For the reasons set forth below, the Court will DENY
each Motion [#49, #51, #52].
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II. DISCUSSION
A. The Court will Deny Petitioner’s Emergency Motion for Immediate
Release from Administrative Segregation [#49].

Petitioner’s Emergency Motion for Immediate Release alleges that prison
officials, without cause, elevated his Class II Minor Misconduct charge to a Class I
Major Misconduct charge as a pretext to place him in administrative segregation.
Petitioner claims these officials placed him in administrative segregation as
punishment for his recent court filings. He now asks the Court to intervene and
order his immediate release. The Court will Deny this request.
“When a prisoner challenges the conditions of his or her confinement but not
the fact or length of his custody, the proper mechanism is a civil rights action
under 42 U.S.C. § 1983.” Turnboe v. Gundy, 27 F. App’x 339 (6th Cir. 2001).
Here, Petitioner is raising a claim that is inappropriate for a habeas action. His
Motion is not challenging the fact or the length of his custody; rather, he is
challenging a condition of his confinement.

This claim should therefore be

brought in a § 1983 suit naming the appropriate officials as defendants.
Accordingly, the Court will DENY Petitioner’s Motion [#49].

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B. The Court will Deny Petitioner’s Motion for Involuntary Dismissal
of Respondent’s Response to Petitioner’s Motion to Compel
Meaningful Access to the Courts [#51].

Petitioner’s Motion for Involuntary Dismissal requests, among other things,
that the Court strike Respondent’s Response to his Motion to Compel Meaningful
Access to the Courts.

Petitioner maintains that he never received a copy of

Respondent’s responsive brief, and thus, was prevented from filing a reply.
Respondent, however, included a Certificate of Service with their brief, attesting
that they mailed a copy of their Response to Petitioner at his listed address. See
Dkt. No. 48, p. 12 (Pg. ID 2582). Hence, the Court will not strike Respondent’s
filing on this basis. Moreover, because the Court has already denied Petitioner’s
Motion to Compel Meaningful Access to the Courts, this issue is now moot.
In addition, Petitioner asks the Court to find that his placement in
administrative segregation violates the Court’s October 29, 2018 Opinion and
Order Granting Petitioner’s Motion to Stop Transfer During the Pendency of
Habeas Corpus Proceedings. See Dkt. 42. That Opinion and Order prohibited
Respondent from transferring Petitioner to a different prison facility during the
pendency of his habeas proceedings. But contrary to Petitioner’s belief, it did not
prohibit Respondent from transferring him to a different unit within the same
prison facility. Accordingly, the Court will DENY Petitioner’s Motion [#51].

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C. The Court will Deny Petitioner’s Motion for Reconsideration of the
Court’s February 27, 2019 Opinion and Order Denying Petitioner’s
Motion to Compel Meaningful Access to the Courts [#52].

Petitioner’s Motion for Reconsideration asserts that the Court’s February 27,
2019 Opinion and Order Denying his Motion to Compel Meaningful Access to the
Courts contained a palpable defect. Specifically, Petitioner claims to have not
received a copy of Respondent’s responsive brief, and consequently, suggests the
Court erred by entering a decision without giving him an adequate opportunity to
reply. Further, that the Court ignored the Supreme Court’s holding in Bounds v.
Smith, which Petitioner interprets as requiring prison authorities to provide him
with either physical access to the law library or assistance from persons trained in
the law. See 430 U.S. 817 (1976).
Local Rule 7.1(h) governs motions for reconsideration. Under this rule, the
Court generally may not grant a motion for reconsideration that merely presents
the same issues upon which the Court already ruled. See E.D. Mich. LR 7.1(h)(3).
Rather, the movant must demonstrate that there is a palpable defect in the Court’s
order and that correcting the defect will result in a different disposition of the case.
Id.

“A ‘palpable defect’ is a defect which is obvious, clear, unmistakable,

manifest, or plain.” Ososki v. St. Paul Surplus Lines Ins. Co., 162 F. Supp. 2d 714,
718 (E.D. Mich. 2001).

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Here, Petitioner fails to demonstrate a palpable defect in the Court’s Order
or that correcting any such defect would result in a different disposition of his case.
The Court denied Petitioner’s Motion to Compel Meaningful Access to the Courts
on two grounds: (1) Petitioner failed to bring his claim in a § 1983 suit, as opposed
to in a habeas action; and (2) Petitioner failed to demonstrate prejudice or an
intentional violation of his constitutional rights. Either ground was sufficient to
deny the Motion. Because Petitioner cannot cure both of these deficiencies, his
Motion for Reconsideration must be DENIED [#52].
V. CONCLUSION
For the reasons stated herein, the Court will DENY Petitioner’s Motions [#
49, #51, #52].
IT IS SO ORDERED.

Dated:

April 10, 2019
s/Gershwin A. Drain
HON. GERSHWIN A. DRAIN
United States District Court Judge

CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing document was mailed to the attorneys
of record on this date, April 10, 2019, by electronic and/or ordinary mail.
s/Teresa McGovern
Case Manager

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