Fitts et al v. Snyder et al

Filing 121

OPINION and ORDER Denying Plaintiff's 82 MOTION for Reconsideration - Signed by District Judge Judith E. Levy. (FMos)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Cameron Fitts, Michael Davis, and
Kenneth Wilson,
Case No. 12-cv-13575
Hon. Judith E. Levy
Mag. Judge Paul J. Komives

Plaintiffs,
v.
Marjorie van Ochten, Rogers,
Hawes, and Vivus,
Defendants.
________________________________/

OPINION AND ORDER DENYING PLAINTIFF’S [82] MOTION
FOR RECONSIDERATION,
This matter is before the Court on plaintiff Michael Davis’ Motion
for Reconsideration (Dkt. 82).

Davis seeks reconsideration of the

Court’s Order granting defendant Dan Bolden’s Motion to Dismiss,
entered on March 31, 2014. (Dkt. 80.) For the reasons discussed below,
the Court will deny the motion.
I.

Background
The factual background of this case is fully set out in the

Magistrate Judge’s Report and Recommendation (Dkt. 63) adopted in

the Court’s order dismissing Bolden.

The Court adopts the factual

background as set out in the Report and Recommendation.
II.

Standard of Review
The Eastern District of Michigan’s Local Rules require a motion

for reconsideration to be filed within 14 days of entry of the judgment or
order. E.D. Mich. L.R. 7.1(h)(1). Motions for reconsideration should not
be granted if they “merely present the same issues ruled upon by the
court, either expressly or by reasonable implication.” E.D. Mich. L.R.
7.1(h)(3). To prevail on a motion for reconsideration, then, a 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.” Witzke v. Hiller, 972 F. Supp. 426, 427 (E.D. Mich. 1997). The
“palpable defect” standard is consistent with the standard for amending
or altering a judgment under Fed. R. Civ. P. 59(e). Henderson v. Walled
Lake Consol. Schs., 469 F.3d 479, 496 (6th Cir. 2006).
III. Analysis
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Davis’ motion is partially titled “Objection made to dismissing
Dan Bolden and others (defendants) in ex parte and afterward when
received R&R to dismiss Dan Bolden.” (Dkt. 82, Pl.’s Mot. 1.) To the
extent that Davis seeks reconsideration of this Court’s order dismissing
defendants other than Bolden, his motion is untimely, as it was filed
over 7 months after those defendants were dismissed by order of
September 27, 2013. (Dkt. 54.)
Davis

primarily

argues

that

MDOC

administrative

rules

concerning major misconducts are invalid. He alleges the invalid rules
were

employed

to

deprive

him

of

various

state

and

federal

constitutional rights. (Id. at 6-7.) Davis further maintains that Bolden
amended visiting rules in violation of the Michigan Administrative
Procedures Act. (Dkt. 82, Pl.’s Mot. 2.)
The Court has already ruled on these issues.

In his Order of

March 31, 2014, Judge Tarnow held that in making these same
arguments, Davis and his co-plaintiffs “have failed to allege the
deprivation of a right secured by the Constitution or laws of the United
States” as is necessary to sustain a claim under 42 U.S.C. § 1983. (Dkt.
80, Order 3-4.) Judge Tarnow further held that the plaintiffs’ “attempt
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to make claims of Constitutional due process violations based on
allegedly invalid state rules and regulations, which Plaintiffs assert
impacted the possibility of parole, pardon, and reprieve, forfeiture of
disciplinary credits, and the possibility of a sentence commutation”
could not be sustained because “Plaintiffs have no constitutionally
protected liberty interest in parole, reprieve, commutation, or pardon.”
(Id. at 4.)
IV.

Conclusion

Davis’ motion for reconsideration “merely present[s] the same
issues ruled upon by the court” in its Order of March 31, 2014. E.D.
Mich. L.R. 7.1(h)(3). Accordingly, the Motion (Dkt. 82) is DENIED.
IT IS SO ORDERED.
Dated: December 1, 2014
Ann Arbor, Michigan

/s/Judith E. Levy
JUDITH E. LEVY
United States District Judge

CERTIFICATE OF SERVICE

The undersigned certifies that the foregoing document was served
upon counsel of record and any unrepresented parties via the Court’s
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ECF System to their respective email or First Class U.S. mail addresses
disclosed on the Notice of Electronic Filing on December 1, 2014.

s/Felicia M. Moses
FELICIA M. MOSES
Case Manager

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