Coleman v. Roberts
Filing
6
OPINION AND ORDER denying 5 Plaintiff's Rule 59(e) Motion. Signed by District Judge Terrence G. Berg. (AChu)
Case 2:19-cv-12324-TGB-PTM ECF No. 6 filed 09/10/20
PageID.23
Page 1 of 6
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
2:19-cv-12324
VERNON MARCUS COLEMAN,
Plaintiff,
v.
VICTORIA A. ROBERTS,
Defendant.
HON. TERRENCE G. BERG
OPINION AND ORDER
DENYING PLAINTIFF’S
RULE 59(e) MOTION
(ECF NO. 5)
I. INTRODUCTION
In 2019, plaintiff Vernon Marcus Coleman filed an application to
proceed without prepaying fees or costs and a pro se civil rights complaint
under Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971). (ECF Nos. 1 and 2.) At the time, Coleman
was confined at the Federal Correctional Institution in Jesup, Georgia.
(ECF No. 1, PageID.2)1 He named the Honorable Victoria A. Roberts as
the sole defendant, claiming that Judge Roberts perpetrated a fraud on
the court and violated his constitutional rights by making false
statements about allegations Coleman made in one of his previous civil
Electronic records maintained by the Federal Bureau of Prisons indicate that
Coleman
was
released
from
custody
on
May
4,
2020.
See
https://www.bop.gov/inmateloc/ (register number 61180-019) (last accessed August
13, 2020).
1
Case 2:19-cv-12324-TGB-PTM ECF No. 6 filed 09/10/20
PageID.24
Page 2 of 6
rights complaints. He sought money damages and an injunction barring
Judge Roberts from adjudicating his cases.
On October 18, 2019, the Court denied Coleman’s application to
proceed without prepaying the fees or costs for this action and dismissed
his complaint without prejudice. (ECF No. 4.) The Court noted that more
than three of Coleman’s previous cases were dismissed as frivolous,
malicious, or for failure to state a claim and that Coleman had failed to
show he was in imminent danger of serious physical injury when he filed
his complaint.
The Court concluded that, under the “three strikes”
provision of 28 U.S.C. § 1915(g),2 Coleman was not permitted to proceed
without prepaying the filing fee. Id., PageID.16-18
Now before the Court is Plaintiff’s motion to alter, amend, or vacate
the Court’s order dismissing his complaint. For reasons given below,
Coleman is not entitled to the requested relief. Accordingly, the Court
will deny his motion.
2
Section 1915(g) reads as follows:
(g) In no event shall a prisoner bring a civil action or appeal a judgment in a
civil action or proceeding under this section if the prisoner has, on 3 or more prior
occasions, while incarcerated or detained in any facility, brought an action or appeal
in a court of the United States that was dismissed on the grounds that it is frivolous,
malicious, or fails to state a claim upon which relief may be granted, unless the
prisoner is under imminent danger of serious physical injury.
28 U.S.C. § 1915(g).
2
Case 2:19-cv-12324-TGB-PTM ECF No. 6 filed 09/10/20
PageID.25
Page 3 of 6
II. DISCUSSION
Coleman brings his motion under Federal Rule of Civil Procedure
59(e), which simply states that “[a] motion to alter or amend a judgment
must be filed no later than 28 days after the entry of the judgment.”
Coleman filed his motion in a timely manner on November 5, 2019.
Nevertheless, the Court “may grant a Rule 59(e) motion to alter or
amend judgment only if there is: ‘(1) a clear error of law; (2) newly
discovered evidence; (3) an intervening change in controlling law; or (4)
a need to prevent manifest injustice.’ ” Henderson v. Walled Lake Consol.
Sch., 469 F.3d 479, 496 (6th Cir. 2006) (quoting Intera Corp. v.
Henderson, 428 F.3d 605, 620 (6th Cir. 2005)).
This standard is
consistent with the “palpable defect” standard found in this District’s
Local Rules. Id. Under Local Rule 7.1, the Court generally
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.
LR 7.1(h)(3) (E.D. Mich. July 1, 2013).
A. Notice and Opportunity to Pay
Coleman argued first in his motion that the Court erred by not
providing him with notice of his “strikes” and an opportunity to pay the
3
Case 2:19-cv-12324-TGB-PTM ECF No. 6 filed 09/10/20
PageID.26
Page 4 of 6
filing fee before dismissing his case. (ECF No. 5, PageID.19.) But, as the
Court pointed out in its previous order, a district court may sua sponte
dismiss a prisoner’s lawsuit under § 1915(g).
Harris v. New York, 607
F.3d 18, 23 (2d Cir. 2010); Witzke v. Hiller, 966 F. Supp. 538, 539 (E.D.
Mich. 1997).
Moreover, the proper procedure was to dismiss the complaint
without prejudice when the Court denied Coleman leave to proceed in
forma pauperis pursuant to the three strikes provision of § 1915(g).
Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002). A “prisoner
cannot simply pay the filing fee after being denied in forma pauperis
status. He must pay the filing fee at the time he initiates the suit.” Id.
(emphasis in original).
The Court therefore rejects Coleman’s first
argument.
B. Dismissals without Prejudice
Coleman argued next in his motion that the Court should not have
counted his previous cases as “strikes” under § 1915(g) because they were
dismissed without prejudice. (ECF No. 5, PageID.20.) Four of the cases,
however, were dismissed without prejudice for failure to state a claim,3
and the Supreme Court recently held that “[a] dismissal of a suit for
failure to state a claim counts as a strike, whether or not with prejudice.”
See Coleman v. Rubinc, et al., No. 2:19-cv-11209 (E.D. Mich. June 27, 2019);
Coleman v. Northville Forensic Laboratory, et al., No. 2:19-cv-11197 (E.D. Mich. June
11, 2019); Coleman v. Bucciarellir, No. 2:19-cv-10630 (E.D. Mich. Apr. 18, 2019); and
Coleman v. Johansene, No. 2:19-cv-10572 (E.D. Mich. Apr. 18, 2019).
3
4
Case 2:19-cv-12324-TGB-PTM ECF No. 6 filed 09/10/20
PageID.27
Page 5 of 6
Lomax v. Ortiz-Marquez, 140 S. Ct. 1721, 1727 (2020). Thus, Coleman’s
second argument fails.
C. Whether Coleman was a Prisoner
Finally, Coleman argued that he was not a prisoner and, therefore,
the Court should not have applied § 1915(g) to his case. As used in §
1915, however, “the term ‘prisoner’ means any person incarcerated or
detained in any facility who is accused of, convicted of, sentenced for, or
adjudicated delinquent for violations of criminal law or the terms and
conditions of parole, probation, pretrial release, or diversionary
program.” 28 U.S.C. § 1915(h).
The Court recognizes that someone who has been released from
custody is not a “prisoner” within the meaning of § 1915(g). Moore v.
Maricopa Cty. Sheriff's Office, 657 F.3d 890, 892 (9th Cir. 2011); Kerr v.
Puckett, 138 F.3d 321, 323 (7th Cir. 1998). But Coleman admitted in his
motion that he was an inmate and “in custody for violation of supervised
release.” (ECF No. 5, PageID.20.)
Supervised release and parole are similar.
United States v.
Johnson, 356 F. App’x 785, 791 (6th Cir. 2009); accord United States v.
Meeks, 25 F.3d 1117, 1121 (2d Cir. 1994) (stating that “supervised release
is essentially similar to parole”), abrogated on other grounds by Johnson
v. United States, 529 U.S. 694 (2000); United States v. Paskow, 11 F.3d
873, 881 (9th Cir. 1993) (explaining that “[s]upervised release and parole
5
Case 2:19-cv-12324-TGB-PTM ECF No. 6 filed 09/10/20
PageID.28
Page 6 of 6
are virtually identical systems”). It follows that a violation of supervised
release is like a violation of parole. Therefore, Coleman fit within the
definition of a prisoner in § 1915, because he was incarcerated in a federal
facility after being convicted of, or sentenced for, violating the conditions
of supervised release, which is comparable to violating the conditions of
parole. The Court rejects Coleman’s final argument.
III. CONCLUSION
Coleman has failed to show that the Court made a palpable error
by dismissing his complaint under § 1915(g). Coleman also has not
shown that altering, amending, or vacating the Court’s dispositive
opinion is necessary to prevent manifest injustice.
Accordingly, IT IS HEREBY ORDERED that Coleman’s motion
under Federal Rule of Civil Procedure 59(e) (ECF No. 5) is DENIED.
DATED: September 10, 2020.
BY THE COURT:
/s/Terrence G. Berg
TERRENCE G. BERG
United States District Judge
6
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?