Johnson v. Michigan Department of Corrections

Filing 7

ORDER denying 6 Motion for Reconsideration filed by Corielle Johnson. Signed by District Judge Nancy G. Edmunds. (CBet)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

CORIELLE JOHNSON,
Case Number: 2:16-cv-10973
HON. NANCY G. EDMUNDS

Plaintiff,
v.
MICHIGAN DEPARTMENT OF
CORRECTIONS,
Defendant.
/

ORDER DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION
Michigan state prisoner Corielle Johnson filed a pro se civil rights complaint under
42 U.S.C. § 1983 and an application to proceed without prepayment of the filing fee for
this action. See 28 U.S.C. § 1915(a)(1). His complaint raised allegations that he was
denied access to the courts and that prison officials retaliated against him for filing
lawsuits and grievances. The Court denied Plaintiff’s application to proceed in forma
pauperis and dismissed the complaint without prejudice under the “three-strikes”
provision of 28 U.S.C. § 1915(g).1 Plaintiff has filed a motion for reconsideration.

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This “three strikes” provision allows the court to dismiss a case where the
prisoner seeks to proceed in forma pauperis, if, on three or more previous occasions, a
federal court has dismissed the prisoner’s action because it was frivolous or malicious or
failed to state a claim for which relief may be granted. 28 U.S.C. § 1915(g). Plaintiff in
this case previously filed three cases that were dismissed on this basis. See Johnson v.
Tollefson, et al., Case No. 2:14-cv-86 (W.D. Mich. Jan. 25, 2016); Johnson v. Niemi, et
al., Case No. 2:15-cv-91 (W.D. Mich. Sept. 3, 2015); Johnson v. Lanala, et al., Case No.
2:15-cv-92 (W.D. Mich. Aug. 26, 2015).

Motions for reconsideration may be granted when the moving party shows (1) a
“palpable defect,” (2) by which the court and the parties were misled, and (3) the
correction of which will result in a different disposition of the case. E.D. Mich. L.R.
7.1(h)(3). A “palpable defect” is a “defect which is obvious, clear, unmistakable,
manifest or plain.” Olson v. The Home Depot, 321 F. Supp. 2d 872, 874 (E.D. Mich.
2004).
Plaintiff states that reconsideration should be granted because each of the three
cases counted as “strikes” by this Court is on appeal. The United States Supreme Court
has held that a case may qualify as a “strike” even though it has been appealed and no
decision on appeal has yet been rendered. Coleman v. Tollefson, — U.S. —, 135 S. Ct.
1759, 1763 (2015). Thus, these strikes were properly counted as such and the Court
DENIES Petitioner’s Motion for Reconsideration (ECF No. 6).
SO ORDERED.

Date: November 29, 2016

s/ Nancy G. Edmunds
NANCY G. EDMUNDS
UNITED STATES DISTRICT JUDGE
CERTIFICATION

I hereby certify that a copy of this document was served upon counsel/parties of record
on this 29th day of November, 2016 by CM/ECF and/or regular U.S. Mail.
s/ Carol J Bethel
Case Manager

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