Washington v. Piper et al

Filing 11

ORDER denying 8 Motion for Reconsideration; granting 9 Motion for Extension of Time. Signed by District Judge John Corbett O'Meara. (WBar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

CLARENCE R. WASHINGTON, #111260,
Plaintiff,
v.

CASE NO. 11-10449
HON. JOHN CORBETT O’MEARA

PAUL PIPER, M.D., SHEILA BASKIN, R.N.,
HOPE S. HEEBSH, P.A., CORRECTIONAL
MEDICAL SERVICES, INC., and
PRISON HEALTH CARE SERVICES, INC.,
Defendants.
______________________________________/
ORDER
GRANTING PLAINTIFF’S MOTION FOR AN ENLARGEMENT OF TIME
AND DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION
I. Introduction
Plaintiff Clarence R. Washington is a state prisoner currently confined at Brooks
Correctional Facility in Muskegon Heights, Michigan. On February 4, 2011, Plaintiff filed
a pro se civil rights complaint under 42 U.S.C. § 1983. He also applied for leave to
proceed without prepayment of the fees and costs for his lawsuit. The complaint
alleged that correctional officials had denied Plaintiff’s requests for special box-toe
footwear and for an assessment of four lumps on his testicles. He sought monetary and
injunctive relief for deliberate indifference to serious medical needs.
Three of Plaintiff’s prior complaints were dismissed as frivolous or for failure to
state a claim, and prisoners may not file a complaint in federal court without prepaying
the filing fee if, on three or more occasions, the plaintiff brought an action or appeal that

was dismissed as frivolous, malicious, or for failure to state a claim. 28 U.S.C. §
1915(g). An exception exists when “the prisoner is under imminent danger of serious
physical injury.” Id. Because Plaintiff did not prepay the filing fee, the Court ordered
him on April 6, 2011, to either pay the filing fee of $350.00 or to show cause why his
complaint should not be dismissed pursuant to 28 U.S.C. § 1915(g). The Court warned
Plaintiff that, failure to comply with the Court’s order within twenty-eight days of the date
of the order could result in the dismissal of his complaint.
Plaintiff did not respond to the Court’s order within twenty-eight days, and on May
31, 2011, the Court dismissed his complaint without prejudice. Currently pending
before the Court are Plaintiff’s motion for an enlargement of time in which to respond to
the Court’s show-cause order and Plaintiff’s motion for reconsideration of the order
dismissing his complaint.
II. The Motion for Extension of Time
Plaintiff alleges in his motion for extension of time that he did not receive the
Court’s show-cause order of April 6, 2011, until May 30, 2011, due to a series of
institutional transfers. He maintains that an earlier response to the Court’s order to
show cause was not possible. The Court accepts Plaintiff’s explanation and grants his
motion for an enlargement of time [dkt. #9] to file a response to the Court’s show-cause
order. Plaintiff has incorporated his response to the show-cause order in his motion and
brief for reconsideration. Therefore, it is unnecessary to provide Plaintiff with additional
time to file a response. The response is deemed timely.
III. The Motion for Reconsideration
Plaintiff’s motion for reconsideration is governed by this District’s local rules,
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which require the movant to “show both that there is a palpable defect in the opinion
and that correcting the defect will result in a different disposition of the case.” Indah v.
United States Securities and Exchange Commission, __ F.3d __, __, Nos. 09-2117, 092570, 10-1477, and 10-1837, 2011 WL 3890226, at *7 (6th Cir. Sept. 6, 2011) (citing
what is now E.D. Mich. Local Rule 7.1(h)(3), effective March 1, 2010). “The local rule
also specifically states that merely presenting the same issues that the court previously
ruled on is not an acceptable ground for reconsideration.” Id. “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) (quoting United States v. Cican,
156 F. Supp. 2d 661, 668 (E. D. Mich. 2001)).
A. When to Evaluate whether the Plaintiff is in “Imminent Danger”
Plaintiff alleges that the Court made three errors in dismissing his complaint.
First, he claims that the Court erred in looking to the date his complaint was filed when
assessing whether he was under “imminent danger” and satisfied the exception to the
rule for “three strikers.” Plaintiff claims that the Court should have evaluated his claims
as of the time that he initiated the administrative exhaustion process required by 42
U.S.C. § 1997e(a).1
Every federal circuit court of appeals to consider the issue, including the Sixth
Circuit in an unpublished case, has read §1915(g) to require the prisoner to be in

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This statute reads: “No action shall be brought with respect to prison
conditions under section 1983 of this title, or any other Federal law, by a prisoner
confined in any jail, prison, or other correctional facility until such administrative
remedies as are available are exhausted.”
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imminent danger at the time of the filing of the complaint in federal court. Vandiver v.
Vasbinder, 416 F. App’x 560, 561 (6th Cir. Mar. 28, 2011) (collecting cases). The Court
therefore concludes that it did not err when it evaluated Plaintiff’s condition as of the
date Plaintiff filed his complaint.
B. Whether Plaintiff was in “Imminent Danger”
Plaintiff argues next that the Court erred in concluding he was not in imminent
danger of serious physical injury. He alleged in his complaint that, beginning in 2007,
he requested medically prescribed box-toe footwear and medical treatment for painful
and malignant lumps on his testicles. However, he also alleged that the growths on his
testicles were removed in October of 2009, and the Court determined that the refusal to
provide Plaintiff with special box-toe footwear without charge did not rise to the level of
a constitutional violation. The Court concluded that Plaintiff was not under imminent
danger of serious physical injury when he filed his complaint on February 4, 2011.
Plaintiff has failed to demonstrate that he is presently being denied adequate
treatment for a potentially life-threatening illness or condition. Thus, he is not in
“imminent danger” for purposes of § 1915(g).
C. Whether Petitioner Should Have Been Permitted to Amend his Complaint
Plaintiff’s third and final argument is that the Court erred when it failed to give him
an opportunity to amend his complaint. The Court did give Plaintiff almost two months
to respond to the order to show cause. Furthermore, the Court of Appeals for the Sixth
Circuit has stated that district courts may not permit plaintiffs to amend a complaint to
avoid a dismissal. See Benson v. O’Brian,179 F.3d 1014, 1016 (6th Cir. 1999)
(interpreting the screening provisions of 28 U.S.C. §§ 1915(e)(2) and 1915A). The
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Court therefore did not err by failing to offer Plaintiff an opportunity to amend his
complaint.
IV. Conclusion
Plaintiff has failed to show that the Court made a clear and unmistakable error
when it dismissed his complaint pursuant to 28 U.S.C. § 1915(g). Accordingly,
Plaintiff’s motions and brief for reconsideration [dkt. # 8 and dkt. #10] are DENIED.

s/John Corbett O’Meara
United States District Judge

Date: October 7, 2011

I hereby certify that a copy of the foregoing document was served upon Plaintiff
on this date, October 7, 2011, at (LRF) 2500 S. Sheridan Drive, Muskegon Heights,
Michigan 49444 by first-class U.S. mail.

s/William Barkholz
Case Manager

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