Krug v. Malatinsky

Filing 9

ORDER DENYING PLAINTIFF'S MOTION FOR RECONSIDERATION[#8]. Signed by District Judge Gershwin A. Drain. (TBan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

GREGORY KRUG,
Plaintiff,
Case No.: 16-cv-12669
Honorable Gershwin A. Drain

v.

WILLIAM J. MALTINKSY, et
al.,
Defendants.
___________________________/
ORDER DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION
[#8]
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). Presently before the Court is Plaintiff’s Motion for
Reconsideration, filed on September 27, 2016. For the reasons that follow, the
Court will deny Plaintiff’s 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 determining that Plaintiff was barred by the PLRA’s “three strikes”
provision, this Court relied on the case of Krug v. Toh, No. 15-cv-06691 (C.D. Cal.
Sept. 9, 2015), which identified the cases filed by Plaintiff that have either been
dismissed as frivolous or for failure to state a claim. The Krug court stated in
relevant part:
[T]he Court takes judicial notice that more than three of Krug’s prior
prisoner civil rights actions have been dismissed under 28 U.S.C. §
1915A on the ground that they failed to state a claim upon which
relief may be granted.
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Krug v. Toh, No. 15-cv-06691, *3 (C.D. Cal. Sept. 9, 2015). The Krug court also
listed the cases filed by Plaintiff that had been dismissed: (1) Krug v. Pellicane,
No. CV 12-10696-PA (CW)(C.D. Cal.) (1/8/15 Judgment); (2) Krug v. Dennis, No.
4:12-cv-00010-JHM (W.D. Ky.) (5/8/12 Judgment); (3) Krug v. Stonerock, No.
4:11-cv-3297-CMC (D. S.C. (1/11/12 Judgment); (4) Krug v. USA, No. 1:10-cv0197-MHL (E.D. Tex.) (12/16/10 Judgment); (5) Krug v. Hahn, No. 1:08-cv00048 (M.D. Tenn.) (7/19/09 Judgment).
In his present motion, Plaintiff complains that the “Pellicane litigation has
not been dismissed for any reason.” He requests that the Clerk of this Court
communicate this information to the Clerk of the Court for the Central District of
California. Aside from the fact that Plaintiff’s request is not a valid reason for
granting a Motion for Reconsideration, even if the Pellicane litigation was
ongoing, he would nonetheless be barred by the three strikes provision of the
PLRA because he has filed more than three cases that have been dismissed as
frivolous or for failure to state a claim.
Additionally, a review of the filings in the Pellicane litigation reveals that it
was likewise dismissed for failure to state a claim. On January 8, 2015, the
Pellicane court accepted the report and recommendation of the magistrate judge.
See Krug v. Pellicane, No. CV 12-10696-PA (CW)(C.D. Cal.) (1/8/15 Judgment).

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The magistrate judge specifically found that Plaintiff’s complaint in Krug v.
Pellicane was “subject to dismissal for failure to state a First Amendment
retaliation claim.” Id. (Nov. 25, 2014 Rep. & Rec.)
For all of the foregoing reasons, Plaintiff’s Motion for Reconsideration [#8]
is DENIED.
SO ORDERED.
Dated: October 31, 2016

/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
October 31, 2016, by electronic and/or ordinary mail.
/s/ Tanya Bankston
Deputy Clerk 

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