Anderson v. Furst et al

Filing 18

ORDER CONSTRUING Plaintiff's 15 Affidavit filed by Jerry Anderson--Signed by Magistrate Judge Anthony P. Patti. (MWil)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JERRY ANDERSON,
Plaintiff
v.

Case No. 2:17-12676
District Judge Victoria A. Roberts
Magistrate Judge Anthony P. Patti

COLTER FURST,
MICHAEL THOMAS, and
NATHAN ELLIS
Defendants.
___________________________________/
ORDER CONSTRUING PLAINTIFF’S AFFIDAVIT (DE 15) AS A
MOTION FOR RECONSIDERATION OF THE CLERK’S NOTICE OF
DENIAL OF REQUEST FOR CLERK’S ENTRY OF DEFAULT (DE 13)
AND DENYING THE MOTION
This matter is before the Court for consideration of Plaintiff Jerry
Anderson’s October 18, 2017 Affidavit (DE 15), which the Court construes as a
motion for reconsideration of the Clerk’s notice of denial of request for clerk’s
entry of default (DE 13.) For the reasons that follow, Plaintiff’s motion is
DENIED.
A.

Background
Plaintiff, a state prisoner who is proceeding in forma pauperis, brings this

prisoner civil rights lawsuit against three defendants, Colter Furst, Michael
Thomas and Nathan Ellis, all Michigan State Police Troopers, alleging they

violated his rights under the Fourth Amendment by using excessive force during
his arrest on September 4, 2015. (DE 1.) He seeks injunctive and declaratory
relief, in addition to compensatory and punitive damages. (Id.)
On October 6, 2017, Plaintiff filed a request for default against all
Defendants pursuant to Fed. R. Civ. P. 55(a), alleging that Defendants failed to
timely file an answer or other responsive pleading to Plaintiff’s complaint as
required by Fed. R. Civ. P. 12(a)(1)(A)(i). (DE 12.) The Court entered a notice of
denial of Plaintiff’s request for clerk’s entry of default on October 12, 2017,
because the “Answer by the defendants is not due until October 20, 2017.” (DE
13.)
Defendants returned executed waivers of service on September 19, 2017
(DE 8-10), and timely filed their Answer on October 20, 2017. (DE 14.) Judge
Roberts issued an order referring all non-dispositive pretrial proceedings to me on
October 26, 2017. (DE 16.)
B.

The Instant Motion
On October 23, 2017, Plaintiff filed an “Affidavit” requesting the Court to

reconsider the Court’s Notice of Denial of Plaintiff’s request for Clerk’s Entry of
Default. (DE 15.) Plaintiff asserts that Defendants are not entitled to the October
20, 2017 deadline for their Answer because there was not a request for waiver of

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service of summons and complaint under Rule 12(a)(1)(A)(ii) and Defendants are
not United States agencies, officers or employees under Rules 12(a)(2) or (3). (Id.)
C.

Discussion
A motion for reconsideration will generally not be granted where the

motion:
merely present[s] 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 …
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); see also Graham ex rel. Estate of Graham v. County of
Washtenaw, 358 F.3d 377, 385 (6th Cir. 2004). 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). Here, Plaintiff has pointed to
no such palpable defect. Contrary to Plaintiff’s statement in his motion,
Defendants did return executed waivers of the service of summons. (DE 8-10).
Pursuant to those waivers, Defendants’ answer was due on or before October 20,
2017. (Id.); see Fed. R. Civ. P. 4(d)(1), 12(a)(1)(A)(ii). Defendants timely filed
their Answer on October 20, 2017. (DE 14.)
Accordingly, Plaintiff has failed to meet his burden to show a palpable
defect in the Court’s prior Order and Plaintiff’s motion for reconsideration will be
DENIED.
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Further, while the Court is aware that Plaintiff is proceeding without
counsel, “Affidavits”—such as that discussed here (DE 15) – or similar
communications to the Court are not pleadings and will be returned. Fed. R. Civ.
P. 7; see also Fed. R. Civ. P. 6(b)(1)(A). Plaintiff is cautioned that his filings in
this case should comply with the Federal Rules of Civil Procedure, the Local
Rules of the E.D. Mich., and my practice guidelines, the latter two of which are
available on the Court’s website (www.mied.uscourts.gov).
IT IS SO ORDERED.
Dated: November 8, 2017

s/Anthony P. Patti
Anthony P. Patti
UNITED STATES MAGISTRATE JUDGE

Certificate of Service
I hereby certify that a copy of the foregoing document was sent to parties of record
on November 8, 2017, electronically and/or by U.S. Mail.
s/Michael Williams
Case Manager for the
Honorable Anthony P. Patti

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