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Thomas v. Thomas

United States District Court, E.D. Michigan, Southern Division

October 5, 2016


          Mona K. Majzoub United States Magistrate Judge



         This Court previously issued an Opinion and Order denying Plaintiff Melvin Thomas's objections and adopting the Magistrate Judge's Report and Recommendation denying Plaintiff's motion for summary judgment. (ECF No. 93.) Thereafter, Plaintiff filed the present motion for reconsideration pursuant to E.D. Mich. L.R. 7.1(h)(3). (ECF No. 96.) Plaintiff also moves, in the alternative, for the Court to certify its non-final opinion and order for interlocutory appeal and stay this action. (Id.) For the following reasons, the Court will deny Plaintiff's motion for reconsideration and also deny Plaintiff's request to certify the order for an interlocutory appeal.


         Plaintiff's Motion is brought under E.D.Mich. LR 7.1(h)(3), which provides:

Generally, and without restricting the court's discretion, the court 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.

         “A ‘palpable defect' is a defect which is obvious, clear, unmistakable, manifest, or plain.” Ososki v. St. Paul Surplus Lines Ins. Co., 162 F.Supp.2d 714, 718 (E.D. Mich. 2001). “[A] motion for reconsideration is not properly used as a vehicle to re-hash old arguments or to advance positions that could have been argued earlier but were not.” Smith v. Mount Pleasant Public Schools, 298 F.Supp.2d 636, 637 (E.D. Mich. 2003).

         II. ANALYSIS

         A. Motion for Reconsideration

         Plaintiff's second amended complaint alleges that Defendant, a Food Service Leader at the St. Louis Correctional Facility in Michigan, submitted a false Major Misconduct Report against Plaintiff in retaliation against him after he exercised his First Amendment right to criticize a public official. (ECF No. 22, Am. Compl.) Plaintiff moved for summary judgment arguing, inter alia, that the Court should give preclusive effect to the factual findings of the Administrative Law Judge (“ALJ”) at the misconduct hearing. In the January 13, 2016 opinion and order this Court adopted the Magistrate Judge's Report and Recommendation, denied Plaintiff's motion for summary judgment and held that the ALJ's factual findings were not entitled to preclusive effect. (ECF No. 93.)

         Plaintiff now moves for reconsideration of that order and argues that this Court committed palpable error when it stated in a “conclusory fashion that the Defendant did not have a ‘full and fair opportunity to litigate' her factual findings” based upon the finding that defendant “did not possess any incentive to ‘vigorously' contest the ALJ's findings at the hearing or on appeal.” (ECF No. 96, at 3.) More specifically, Plaintiff avers that the Court erred when it evaluated whether Defendant had “incentive” to vigorously contest the factual findings in the misconduct hearing and further claims that the Court disregarded the dispositive factor of the analysis - the Court's “sense of justice and equity.” (Id., at 3-4.)

         In Peterson v. Johnson, 714 F.3d 905 (6th Cir. 2013), the Sixth Circuit held that the factual findings in a major-misconduct hearing against a prisoner were entitled to preclusive effect against the prisoner-turned-plaintiff in his later filed federal action. To reach that conclusion, the Sixth Circuit examined the factors set forth in University of Tennessee v. Elliott, 478 U.S. 788 (1986) and concluded that because the first three factors were satisfied the court “must give the agency's finding of fact the same preclusive effect it would be given in state courts.” Peterson, 714 F.3d at 912-13 (citation omitted). Pertinent to the instant motion, under Michigan law a court must evaluate whether the “parties had a full and fair opportunity to litigate the issue” to determine the preclusive effect of the factual findings of a major-misconduct hearing. Peterson, 714 F.3d at 914 (citing McCormick v. Braverman, 451 F.3d 382, 397 (6th Cir. 2006)). To make that determination, a court must weigh thirteen factors, however, the Sixth Circuit recognized that “ultimately the answer ‘rest[s] on the ... courts' sense of justice and equity.'” Id., at 914-15 (citing Monat v. State Farm Ins. Co., 469 Mich. 679, 683 n. 2 (2004)).

         Subsequently, in Roberson v. Torres, 770 F.3d 398 (6th Cir. 2014), the Sixth Circuit clarified its holding in Peterson, cautioning that it was not a “blanket blessing on every factual finding in a major-misconduct hearing.” Roberson, 770 F.3d at 404. The Sixth Circuit explained:

the question of preclusion cannot be resolved categorically, as it turns on case-specific factual questions such as what issues were actually litigated and decided, and whether the party to be precluded had sufficient incentives to litigate those issues and a full and fair opportunity to do so - not just in theory, but in practice. [Peterson, 714 F.3d] at 916-17. It likewise turns on the court's “sense of justice and equity, ” Blonder-Tongue Labs. v. ...

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