UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

PHILLIP BERRYMAN,

Plaintiff,

v. Case No. 14-12593

SCOTT FREED, R. VITTITOW, L. HON. AVERN COHN

ELKINS, EXELBY, N. CULBERSON, 

KEDRON, FAY TAYLOR, FRED FUNSTON,

RESZKE, ADRIANE NEFF, and

RUHL-ANDERSON,

Defendants.

____________________________________/

ORDER

DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION AND/OR MOTION TO

REOPEN PURSUANT TO FED. R. CIV. P. 60(b) AND FOR EVIDENTIARY

HEARNING OF THE COURT’S JUNE 30, 2015 oRDER DENYING PLAINTIFF’S

OBJECTION UNDER FED. R. CIV. P. 60(b) AND PLAINTIFF’S MOTION TO

DISQUALIFY (Doc. 49)

I.

This is a prisoner civil rights case. On July 1, 2014, Philip Berryman, Charles

Starling, and Daniel Mora, prisoners at the Saginaw Correctional Facility (SCF) at the

time of their suit,1

 filed this action under 42 U.S.C. § 1983, 1985, and 1988, essentially

claiming that defendants, employees of the Michigan Department of Corrections at SCF

conspired against them against to violate their civil rights by issuing false and/or

retaliatory misconduct tickets and destroying documents. The matter was referred to a

1

Berryman is currently incarcerated at the Macomb Correctional Facility, Mora

remains incarcerated at SCF, and Starling has been release on parole.

2:14-cv-12593-AC-MKM Doc # 56 Filed 01/26/16 Pg 1 of 4 Pg ID 365
magistrate judge.

Before the Court is Berryman’s motion for reconsideration and for an evidentiary

hearing regarding the denial of his motion to disqualify. For the reasons that follow, the

motion is DENIED.

II.

Some background is in order to explain the posture of the instant motion. After

service, defendants filed a motion to sever the plaintiffs. (Doc. 30). The magistrate

judge recommended the motion be granted. (Doc. 35). The Court, over objections by

only Berryman and Starling, see Docs. 37, 38, 39, agreed and granted the motion. 

Starling and Mora’s claims were then severed and they were dismissed from the case. 

This left Berryman as the sole plaintiff. As such, the Court, as recommended by the

magistrate judge, directed him to pay the remainder of the filing fee. (Doc. 42).

Berryman then filed a motion for reconsideration of the Court’s ruling that he pay

the remainder of the filing fee. (Doc. 44) The Court granted in part and denied in part

the motion, stating that Berryman was correct that the filing fee for a prisoner case is

$350.00 but that Berryman is still responsible for the balance of the filing fee which was

$233.34 because neither of the severed plaintiffs, Starling or Mora, had paid any portion

of the filing fee and had been dismissed. (Doc. 45). 

Berryman then filed (1) Objections to the Court’s order on reconsideration under

Fed. R. Civ. P. 60(b)(6) (Doc.46) and a motion to recuse/disqualify the undersigned and

the magistrate judge (Doc. 47). The Court denied both motions. As to the

objection/60(b) motion, the Court again explained that because Berryman is now the

sole plaintiff, he must pay the remainder of the filing fee. As to the motion to disqualify,

2

2:14-cv-12593-AC-MKM Doc # 56 Filed 01/26/16 Pg 2 of 4 Pg ID 366
the Court found that Berryman failed to show that the undersigned or the magistrate

judge harbor any bias against him or engaged in extrajudicial conduct prejudicial to him. 

Berryman has now filed the instant motion styled:

MOTION FOR RECONSIDERATION AND/OR MOTION TO REOPEN UNDER

FED. R. 60(b)(1)(3) AND FOR EVIDENTIARY HEARING OF THE COURT’S

JUNE 30, 2015 ORDER DENYING PLAINTIFF’S OBJECTIONS UNDER FED. R.

60(b) AND PLAINTIFF’S MOTION TO DISQUALIFY JUDGE COHN AND

MAGISTRATE MAJZOUB

Essentially, Berryman seeks reconsideration of the Court’s order denying his Rule 60(b)

motion in which he objected having to pay the full filing fee and seeks an evidentiary

hearing on this motion to disqualify. Neither request has merit.

III.

As to reconsideration, E.D. Mich LR 7.1(h)(3) provides in relevant part:

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 implication. 

The movant must not only demonstrate a palpable defect by which the

court and the parties 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 that is obvious, clear, unmistakable, manifest, or plain. 

Witzke v. Hiller, 972 F. Supp. 426, 427 (E.D. Mich. 1997).

Berryman has not satisfied this standard. He continues to argue that he should

not be responsible for payment of the remainder of the filing fee. The Court has already

concluded that he must pay the remainder of the filing fee and explained its reasons.2

2

The Court notes that Berryman has not requested permission to proceeding in

forma pauperis. This is likely because he has had more than three prior prisoner civil

rights cases dismissed as frivolous. Indeed, a search of the district’s electronic case

records shows that Berryman has been a prolific filer, having filed multiple prior prisoner

civil rights cases. As such, he is subject to the three strikes provision of the Prisoner

3

2:14-cv-12593-AC-MKM Doc # 56 Filed 01/26/16 Pg 3 of 4 Pg ID 367
Berryman’s motion presents the same arguments previously considered and rejected by

the Court. Reconsideration is not warranted.

Regarding Berryman’s request for an evidentiary hearing on his motion for

recusal, he continues to contend that the undersigned and magistrate judge are biased

because of the ruling that he pay the remainder of the filing fee. This is not grounds for

recusal nor does is merit an evidentiary hearing.

 SO ORDERED.

S/Avern Cohn 

AVERN COHN

Dated: January 26, 2016 UNITED STATES DISTRICT JUDGE

 Detroit, Michigan

Litigation Reform Act which limits a prisoner’s ability to proceed in forma pauperis.

4

2:14-cv-12593-AC-MKM Doc # 56 Filed 01/26/16 Pg 4 of 4 Pg ID 368