Malcom v. Walker et al
ORDER DENYING REQUESTS FOR RECONSIDERATION [DOC. 7, 8, AND 9]. Signed by District Judge Avern Cohn. (MVer)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case No. 17-11140
HON. AVERN COHN
JUDGE SHANNON WALKER, CATHY
MARIE GARRETT, Wayne County Clerk,
and Attorney RICHARD M. LYNCH,
ORDER DENYING MOTION FOR RECONSIDERATION (Docs. 7, 8, 9)
This is a prisoner civil rights case under 42 U.S.C. § 1983. Plaintiff Ebony Malcom
proceeding pro se and without prepayment of the filing fee, sued Judge Shannon Walker,
Wayne County Clerk Cathy Marie Garrett, and Attorney Richard M. Lynch. The Court
dismissed the complaint for failure to state a viable claim. (Doc. 4).
Before the Court is plaintiff’s motion for reconsideration. For the reasons that
follow, the motion is DENIED.
A motion for reconsideration which presents the same issues already ruled upon
by the court, either expressly or by reasonable implication, will not be granted. To
obtain reconsideration, Petitioner must not only demonstrate a palpable defect by which
the court and the parties have been misled but also show that a different disposition of
the case must result from a correction thereof. See E.D. Mich. LR 7.1 (h). A palpable
defect is a defect that is obvious, clear, unmistakable, manifest, or plain. Witzke v.
Hiller, 972 F. Supp. 426, 427 (E.D. Mich. 1997).
Here, plaintiff presents the same argument in her motion for reconsideration
which was rejected by the Court. Specifically, plaintiff says that because defendants
failed to respond to her filings in state court, her conviction must be reversed. As
explained in the order of dismissal, a judgment in favor of plaintiff would necessarily
require a finding that her continued confinement is the result of an invalid conviction. In
Heck v. Humphrey, 512 U.S. 477, 486-87 (1994), the Supreme Court held such claims
cannot be brought under section 1983.
Instead, a motion under 28 U.S.C. § 2254 provides the appropriate vehicle for
challenging the fact or duration of a prisoner’s confinement. The Court also cannot
convert this matter into a 2254 motion; it must dismiss the complaint.
In short, plaintiff has not shown that the Court erred in dismissing the complaint.
UNITED STATES DISTRICT JUDGE
Dated: July 17, 2017
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