United States District Court, E.D. Michigan, Northern Division
ORDER DENYING MOTION FOR RECONSIDERATION
L. LUDINGTON United States District Judge
September 21, 2016, Plaintiff filed a pro se complaint under
42 U.S.C. § 1983 alleging that various officials and
employees of the Midland County Jail violated his first
amendment rights by opening his legal mail outside of his
presence and withholding his outgoing legal mail. On January
3, 2017, pretrial matters were referred to Magistrate Judge
Anthony Patti. Defendants moved to dismiss and, in the
alternative, for summary judgment on March 6, 2017. Plaintiff
moved for appointment of counsel on June 26, 2017, and the
motion was denied. On November 6, 2017, Judge Patti issued a
report recommending that Defendants' motion to dismiss be
granted and that Plaintiff's complaint be dismissed.
Plaintiff sought and received an extension of time to file
objections to the report and recommendation, and filed his
objections on November 27, 2017. On November 6, 2017,
Plaintiff filed a “(Motion for a Supplement) A
Preliminary Injunction For Relief From Deliberate
Indifference.” ECF No. 31. The proposed supplemental
pleading sought monetary damages. ECF No. 31.
February 21, 2018, the Court entered an order adopting Judge
Patti's report and recommendation, and dismissing the
complaint. ECF No. 35. The Court noted that Plaintiff had not
disputed Judge Patti's conclusion that Plaintiff's
claim for injunctive relief was moot because he was no longer
being held at the Midland County Jail. The Court also denied
his motion to amend to add a claim for monetary damages
because: 1) the motion was unnecessarily delayed, and 2) the
amendment would be futile because the proposed amended
complaint failed to state a claim against Defendants in their
official capacities. On March 5, 2018, Plaintiff filed a
letter indicating that he is now being held at the Midland
County Jail again. ECF No. 38.
16, 2018, Plaintiff filed a motion for reconsideration, in
which he also indicated that he now resides at the Midland
County Jail again. ECF No. 42. In his motion, Plaintiff
alleges his legal mail was once again opened outside his
presence on May 6, 2018. Plaintiff also alleges various other
wrongs by jail officials including: 1) retaliating against
him for by issuing frivolous tickets in violation of his
first amendment rights; 2) depriving him of access to the
commissary store and law library; 3) putting him in the hole
based on false allegations that he flashed female inmates.
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, 2015 WL 3441531, at *1
(E.D. Mich. May 28, 2015).
motion was not filed for nearly three months after the entry
of the order in question, and the motion is therefore
untimely. Plaintiff's letter dated March 5 was filed
within 14 days. However, even if the letter could be
construed as a motion for reconsideration, Plaintiff would
not be entitled to relief. The fact that Plaintiff is now
being housed in the Midland County Jail again does not render
the Court's decision erroneous. There was no indication
on the record at the time the Court's order was issued
that Plaintiff was again being held in the Midland County
Jail. Rather, all indications were to the contrary. Indeed,
Plaintiff acknowledge as much in his response to the motion
to dismiss: “Petitioner asserts his claim for
Injunctive Relief is moot since he no longer is housed at
Midland county Jail.” Resp. at 6, ECF No. 26.
questions are not justiciable and courts do not rule on such
questions in order to avoid issuing advisory opinions. A case
is not moot, however, even though the factual controversy is
over, if the case involves wrongs “capable of
repetition, yet evading review.” United States v.
Peters, 754 F.2d 753, 757 (7th Cir. 1985). This doctrine
does not provide Plaintiff any relief here, however. There
was no indication at the time the Court issued its order that
Plaintiff might end up back at the Midland County Jail. The
circumstances by which he was transferred out of Midland
County Jail and back were (and still are) unknown. Plaintiff
made no argument that the wrong was capable of repetition. In
fact, Plaintiff himself acknowledged that his claim for
injunctive relief was moot.
now seeks reconsideration on the grounds that jail officials
are opening his legal mail again without him being present.
He also alleges a variety of other wrongful acts. These
factual allegations do not undermine the validity of the
Court's order, which was based only on the facts known at
the time the order was issued. New wrongs committed after the
entry of Judgment are not grounds to seek reconsideration of
the Court's order.
motion for reconsideration reads much like a new complaint.
To the extent Plaintiff believes he can, via a motion for
reconsideration, assert a new cause of action for wrongful
acts that occurred after the entry of judgment in this case
(including claims against new defendants), he is mistaken.
The proper approach is for Plaintiff to file a new complaint
(not on the present docket) with the clerk's office in
Detroit, who will assign him a new case number.
it is ORDERED, that the motion for reconsideration, ECF No.
42, is DENIED.
 Theodore Levin U.S. Courthouse, 231 W.
Lafayette Blvd., Detroit, MI 48226.
 Contemporaneously with his motion for
reconsideration, Plaintiff also filed an application to
proceed in the district court without prepaying fees or
costs. ECF No. 44. Plaintiff has already filed such an
application on September 21, 2016, contemporaneously with his