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Levay v. United States

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

August 16, 2017

ROSS LEVAY, Plaintiff,
v.
UNITED STATES, Defendants.

          ORDER DENYING MOTION TO AMEND JUDGMENT

          THOMAS L. LUDINGTON UNITED STATES DISTRICT JUDGE.

         On February 17, 2017, Plaintiff Ross Levay filed a complaint alleging that the United States and various government officials have committed gross negligence, breach of contract, First Amendment violations, and breach of oath by failing to prevent “incitement to imminent lawlessness” by “Radical Islamic Terrorists.” Compl. at 6-7, ECF No. 1. The case was referred to Magistrate Judge Patricia T. Morris. ECF No. 3. On February 24, 2017, Judge Morris issued a report recommending that the case be dismissed sua sponte because Levay lacks standing. ECF No. 7. Levay objected to effectively every aspect of Judge Morris's report and recommendation. ECF No. 10. Rather than individually addressing each objection, the Court reviewed Levay's complaint de novo (meaning with no deference to Judge Morris's findings) and independently concluded that Levay's suit was frivolous and would be dismissed. ECF No. 14. On July 21, 2017, Levy filed a “Motion to Amend Judgment.” ECF No. 16. In the motion, Levay makes three requests: individually address each of his five objections, amend the previous order to remove the holding that the suit is “frivolous, ” and reconsider the previous refusal to allow Levay to appeal in forma pauperis. For the following reasons, that motion will be denied.

         As summarized in the July 11, 2017, opinion and order:

In his complaint, Levay explains that “there have been a high and increasing number of Islamic motivated violent acts targeting Jews and our places of worship.” Compl. at 5, ECF No. 1. Levay is a Jew and contends that the “incitement to imminent violence” found in the Quran and “cited by ISIS, Al Qaeda” and others has deprived Levay of “the freedom of religious expression.” Id.
Levay provides an extensive list of requested relief. He wishes the Court to hold that “specific Koranic verses, presented during the trial, fail the Imminent Lawlessness Test.” Id. at 6. He also intends to prove a “direct link to specific Koranic verses extolling among specific Radical Islamic Terrorists as the underlying motive, cause and essential ‘but for' for 74 specific Radical Islamic Terrorist attacks within the US.” Id. He desires a “formal declaration of incompatibility between Koranic Sharia Law . . . and U.S. Constitutional Law.” Id. at 7. He also asks that the Court direct Congress to take action by outlawing certain passages of the Quran, issue a federally sanctioned and edited Koran, and withdraw tax-exempt status from mosques which do not adopt the new Quran, and institute a “National Islamic Registry Program.”

July 11, 2017, Op. & Order at 1-2, ECF No. 14.

         The Court found that Levay's suit was frivolous for the following reasons:

First, Levay lacks standing to bring this suit. Levay's suit seeks relief for the threat of violence that Islamic extremism poses to him and his community. But he does not allege injury to him personally, or an imminent, particularized threat of future injury. See Sierra Club v. Morton, 405 U.S. 727, 735 (1972) (holding that standing “requires that the party seeking review be himself among the injured”). Even if Levay did allege an actionable injury, the Court does not have the authority to direct Congress to legislate on an issue, much less vanquish the specter of religiously-motivated violence. See Smith & Lee Assocs., Inc. v. City of Taylor, Mich., 102 F.3d 781, 797 (6th Cir. 1996) (explaining that federal courts do not have the power to order Congress to enact legislation). And, more fundamentally, Levay's requests for a state-issued Koran, a national registry of Muslims, and financial sanctions for rogue mosques offend basic constitutional principles. The First Amendment forbids Congress from making a law “respecting an establishment of religion, or prohibiting the free exercise thereof.” U.S. Const., Am. I.

Id. at 3-4.

         II.

         Levay's present motion is effectively a motion for reconsideration of the Court's previous order. Pursuant to Eastern District of Michigan Local Rule 7.1(h), a party can file a motion for reconsideration of a previous order, but must do so within fourteen days. A motion for reconsideration will be granted if the moving party shows: “(1) a palpable defect, (2) the defect misled the court and the parties, and (3) that correcting the defect will result in a different disposition of the case.” Michigan Dept. of Treasury v. Michalec, 181 F.Supp.2d 731, 733-34 (E.D. Mich. 2002) (quoting E.D. Mich. LR 7.1(g)(3)). A “palpable defect” is “obvious, clear, unmistakable, manifest, or plain.” Id. at 734 (citing Marketing Displays, Inc. v. Traffix Devices, Inc., 971 F.Supp.2d 262, 278 (E.D. Mich. 1997). “[T]he 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.” E.D. Mich. L.R. 7.1(h)(3). See also Bowens v. Terris, No. 2:15-CV-10203, 2015 WL 3441531, at *1 (E.D. Mich. May 28, 2015).

         Levay's motion could also be construed as a request for relief under Federal Rule of Civil Procedure 59(e). That Rule allows a party to file a “motion to alter or amend a judgment.” Id. Motions under Rule 59(e) may be granted “if there is a clear error of law, newly discovered evidence, an intervening change in controlling law, or to prevent manifest injustice.” GenCorp, Inc. v. Am. Int'l Underwriters, 178 F.3d 804, 834 (6th Cir. 1999) (internal citations omitted). “Rule 59(e) motions cannot be used to present new arguments that could have been raised prior to judgment.” Howard v. United States, 533 F.3d 472, 475 (6th Cir. 2008). If a party is effectively attempting to “‘re-argue a case' . . . the district court may well deny the Rule 59(e) motion on that ground.” Id. (quoting Sault Ste. Marie Tribe of Chippewa Indians v. Engler, 146 F.3d 367, 374 (6th Cir. 1998)). Likewise, a Rule 59(e) motion is not an appropriate vehicle to “‘submit evidence which could have been previously submitted in the exercise of reasonable diligence.'” Kenneth Henes Special Projects Procurement v. Cont'l Biomass Indus., Inc., 86 F.Supp.2d 721, 726 (E.D. Mich. 2000) (quoting Nagle Industries, Inc. v. Ford Motor Company, 175 F.R.D. 251, 254 (E.D. Mich. 1997)).

         III.

         Because there was no error in the opinion and order dismissing his complaint, Levay's motion will be denied. Each of his requests will be addressed in turn. First, Levay asks the Court to “[i]ndividually address of the five objections” he previously submitted. Mot. Am. at 1, ECF No. 16. In reality, Levay filed much more than five objections to Judge Morris's report and recommendation. For example, his “first objection” includes five subsections and spans 9 pages. See Objs, ECF No. 10. Levay now faults the Court for not specifically addressing each argument made in his 28 pages of objections. Rather than exhaustively addressing the objections, the Court opted to simply review Levay's entire complaint de novo. Levay implicitly challenges that approach, asserting: “If there is any flaw in my objections, not the initial complaint, please say so.” Mot. Am. at 1 (emphasis in original). But that argument misconstrues Levay's burden. Levay must providewell-pleaded factual allegations in the complaint which establish that his right to relief rises “above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Levay's complaint, not his objections, are the operative pleading in this matter and thus must meet federal pleading standards. See Federal Rules of Civil Procedure 7(a) & 8(a). In the July 11, 2017, opinion and order, the Court found ...


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