Krug v. Malatinsky
ORDER DENYING PLAINTIFF'S AMENDED MOTION FOR RECONSIDERATION [#11]. Signed by District Judge Gershwin A. Drain. (TBan)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case No.: 16-cv-12669
Honorable Gershwin A. Drain
WILLIAM J. MALTINKSY, et
ORDER DENYING PLAINTIFF’S AMENDED MOTION FOR
On September 12, 2016, this Court entered an Order denying Plaintiff’s
Application to Proceed without Prepayment of Fees or Costs. The Court summarily
dismissed Plaintiff’s Complaint because he is barred from proceeding in forma
pauperis pursuant to the “three strikes” provision of the Prison Litigation Reform
Act, 28 U.S.C. § 1915(g). On October 31, 2016, this Court denied Plaintiff’s
Motion for Reconsideration. Presently before the Court is Plaintiff’s Amended
Motion for Reconsideration, filed on December 5, 2016. For the reasons that
follow, the Court will deny Plaintiff’s Amended Motion for Reconsideration.
Local Rule 7.1(h)(3) of the Local Rules of the United States District Court
for the Eastern District of Michigan provides:
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.
E.D. Mich. L.R. 7.1(h)(3). “A ‘palpable defect’ is ‘a defect that is obvious, clear,
unmistakable, manifest, or plain.’” United States v. Lockett, 328 F. Supp. 2d 682,
684 (E.D. Mich. 2004) (citing United States v. Cican, 156 F. Supp. 2d 661, 668
(E.D. Mich. 2001)). “[A] motion for reconsideration is not properly used as a
vehicle to re-hash old arguments or to advance positions that could have been
argued earlier but were not.” Smith ex rel. Smith v. Mount Pleasant Pub. Sch., 298
F. Supp. 2d 636, 637 (E.D. Mich. 2003) (citing Sault Ste. Marie Tribe of Chippewa
Indians v. Engler, 146 F.3d 367, 374 (6th Cir.1998)).
In his present motion, Plaintiff continues to argue that he is not subject to the
“three strikes” provision of the PLRA. Plaintiff re-asserts his position that the case
this Court relied upon to conclude he is barred by 28 U.S.C. § 1915(g) was
erroneously decided. See Krug v. Toh, No. 15-cv-06691, *3 (C.D. Cal. Sept. 9,
2015) (listing Plaintiff’s previous cases that have been dismissed as frivolous and
dismissing action under 28 U.S.C. § 1915(g)). Plaintiff’s assertion of arguments
that have already been considered and rejected by this Court does not entitle him to
the requested relief. Smith ex rel. Smith, 298 F. Supp. 2d at 637.
For all of the foregoing reasons, Plaintiff’s Amended Motion for
Reconsideration [#11] is DENIED.
Dated: January 9, 2017
/s/Gershwin A. Drain
GERSHWIN A. DRAIN
United States District Judge
CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
January 9, 2017, by electronic and/or ordinary mail.
/s/ Tanya Bankston
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