UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

 

ALLEN DAVID DANIEL,

Plaintiff,

v. Case No. 08-13817

BLAINE LAFLER, et al.,

Defendants.

 /

OPINION AND ORDER (1) CONSTRUING PLAINTIFF’S “OBJECTION TO OPINION

AND ORDER” AS A MOTION FOR RECONSIDERATION AND DENYING SAME

(2) DISMISSING PLAINTIFF’S COMPLAINT, (3) TERMINATING AS MOOT

PLAINTIFF’S PENDING MOTIONS [Dkt. ## 70, 71], AND (4) DENYING PLAINTIFF’S

“OBJECTION” [Dkt. 75]

On July 28, 2009, this court issued an opinion and order requiring Plaintiff Allen

Daniel to pay the court’s $350.00 filing fee on or before August 26, 2009, or his case

would be dismissed. On August 18, 2009, Plaintiff filed objections to this court’s opinion

and order, which the court will construe as a motion for reconsideration and will deny. 

On August 18, 2009, Plaintiff filed an “Objection” to the magistrate judge’s July 30, 2009

order. Because the deadline for Plaintiff to pay his filing fee has now passed, and

Plaintiff has not paid the fee, the court will also dismiss Plaintiff’s case without prejudice,

terminate as moot his pending motions, and deny his “Objection” to the magistrate

judge’s July 30, 2009 order. 

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1 The filing date of a prisoner’s complaint is determinated by the date the prisoner

deposited it into the prison mail system, rather than the date it is entered by the court. 

See Scott v. Evans, 116 F. App’x 699, 700 (6th Cir. 2004).

2

I. BACKGROUND

Plaintiff Allen Daniel is currently an inmate at Baraga Maximum correctional

Facility in Baraga, Michigan. On August 28, 2008,1

 Plaintiff filed a civil rights action

pursuant to 42 U.S.C. § 1983 against various prison staff at the St. Louis Correctional

Facility. (Compl. at 2.) Plaintiff alleges that prison staff retaliated against him for prior

lawsuits he had filed against them. 

On September 12, 2008, Plaintiff was granted IFP status by this court. [Dkt. # 7.] 

Defendants filed a motion to revoke Plaintiff’s IFP status on January 8, 2009. [Dkt. #

21.] On June 9, 2009, Magistrate Judge Paul J. Komives issued a Report and

Recommendation (“R&R”), in which he recommended granting Defendants’ motion to

revoke Plaintiff’s in forma pauperis (“IFP”) status, which this court adopted and

incorporated by reference in its July 28, 2009 opinion and order. 

Plaintiff is a prolific filer in this court, and has had three cases, filed prior to the

instant case, dismissed because they were “frivolous, malicious, or fail[ed] to state a

claim upon which relief may be granted.” 28 U.S.C. § 1915(g). These cases include: 

Daniel v. Granholm, No. 08-10863, 2008 WL 2478323 (E.D. Mich. Jun. 16, 2008);

Daniel v. Granholm, No. 08-10999, 2008 WL 1741633 (E.D. Mich. Apr. 11, 2008); and

Daniel v. Caruso, No. 08-11000, 2008 WL 1456609 (E.D. Mich. Apr. 10, 2008). 

II. STANDARD

Motions for reconsideration are properly heard under Federal Rule of Civil

Procedure 59(e). A district court maintains discretion when deciding a motion to amend

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a judgment under Rule 59(e). Northland Ins. Co. v. Stewart Title Guar. Co., 327 F.3d

448, 454-55 (6th Cir. 2003). “Motions to alter or amend judgment 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) (citations omitted). 

Additionally, Eastern District of Michigan Local Rule 7.1(g) provides that, “without

restricting the court’s discretion,” a motion for reconsideration will not be granted unless

the movant can (1) “demonstrate a palpable defect by which the court and the parties

have been misled,” and (2) show that “correcting the defect will result in a different

disposition of the case.” E.D. Mich. LR 7.1(g)(3). “A ‘palpable defect’ is ‘a defect that is

obvious, clear, unmistakable, manifest, or plain.’” United States v. Lockett, 328 F.

Supp. 2d 682, 684 (E.D. Mich. 2004) (citing United States v. Cican, 156 F. Supp. 2d

661, 668 (E.D. Mich. 2001)). A motion for reconsideration which presents the same

issues already ruled upon by the court, either expressly or by reasonable implication,

will not be granted. E.D. Mich. LR 7.1(g)(3); Czajkowski v. Tindall & Assocs., P.C., 967

F. Supp. 951, 952 (E.D. Mich. 1997). 

III. DISCUSSION

A. Motion for Reconsideration

Plaintiff filed his “Objection to Opinion and Order” in response to this court’s July

28, 2009 order. In his “Objection,” Plaintiff attempts to reargue the objections he filed in

response to the magistrate judge’s R&R, and which this court considered before issuing

its July 28, 2009 order. Therefore, the court will construe Plaintiff’s “Objection” as a

motion for reconsideration. 

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In his “Objection,” Plaintiff restates his legal claims, provides a list of supporting

exhibits, and cites legal authority regarding standing. Plaintiff also alleges that he is in

imminent danger of serious bodily harm such that the court should not apply the “three

strikes” rule to his case. However, the court considered Plaintiff’s allegations in its July

28, 2009 opinion and order, and Plaintiff has not presented a “palpable defect,” the

correction of which “will result in a different disposition of the case.” E.D. Mich. LR

7.1(g)(3). Plaintiff simply reargues issues already rule upon by the court, and this is

insufficient to prevail on upon a motion for reconsideration. E.D. Mich. LR 7.1(g)(3);

Czajkowski v. Tindall & Assocs., P.C., 967 F. Supp. 951, 952 (E.D. Mich. 1997). The

court will therefore deny Plaintiff’s “Objection.” 

B. Failure to Pay the Filing Fee

Congress enacted the Prison Litigation Reform Act (“PLRA”) in 1996 as a means

of precluding the use of in forma pauperis (“IFP”) status by indigent prisoners who file

multiple lawsuits that are “frivolous, malicious, or fail to state a claim upon which relief

may be granted.” 28 U.S.C. § 1915(g). IFP status is a privilege that is subject to

limitations and can be revoked if misused. Accordingly, prisoners who file multiple

frivolous, malicious, of legally insufficient claims are subject to 28 U.S.C. § 1915(g),

which is known as the “three strikes” rule. It states:

In no event shall a prisoner bring a civil action or appeal a judgment in a

civil action or proceeding under this section if the prisoner has, on 3 or

more prior occasions, while incarcerated or detained in any facility,

brought an action or appeal in a court of the United States that was

dismissed on the grounds that it is frivolous, malicious, or fails to state a

claim upon which relief may be granted, unless the prisoner is under

imminent danger of serious physical injury.

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28 U.S.C. § 1915(g). Section 1915(g) bars a prisoner from proceeding IFP if the

prisoner has previously had three cases dismissed as “frivolous, malicious, or fails to

state a claim upon which relief may be granted.” 28 U.S.C. § 1915(g). Known as the

“three strikes” rule, this provision aids in the PLRA’s “dual purpose of discouraging

frivolous litigation while ensuring the meritorious claims are litigated.” Hadix v. Johnson,

398 F.3d 863, 866 (6th Cir. 2005). The plain language of the statute requires that the

three dismissal have occurred prior to the prisoner’s filing of a new action. Id.

This court found in its July 28, 2009 order that Plaintiff had three cases, prior to

the time he filed the instant case, dismissed because they were “frivolous, malicious, or

fail[ed] to state a claim upon which relief may be granted.” 28 U.S.C. § 1915(g). These

cases include: Daniel v. Granholm, No. 08-10863, 2008 WL 2478323 (E.D. Mich. Jun.

16, 2008); Daniel v. Granholm, No. 08-10999, 2008 WL 1741633 (E.D. Mich. Apr. 11,

2008); and Daniel v. Caruso, No. 08-11000, 2008 WL 1456609 (E.D. Mich. Apr. 10,

2008). 

As a result, the court revoked Plaintiff’s IFP privileges and ordered him to pay the

court’s $350.00 filing fee on or before August 26, 2009, or have his case dismissed. 

Plaintiff has not paid the filing fee, and the time for doing so has passed. Therefore, the

court will dismiss Plaintiff’s complaint without prejudice. 

C. Pending Motions

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Plaintiff has two pending motions. Because the court will dismiss Plaintiff’s

complaint without prejudice, the court will terminate these motions as moot. 

D. Objections to Magistrate Judge’s Order

On August 18, 2009, Plaintiff filed an “Objection” to the magistrate judge’s July

30, 2009 order denying without prejudice Plaintiff’s pending motions because the court

revoked Plaintiff’s IFP status. This court’s reference to the magistrate judge vests the

magistrate judge with the power to hear and determine non-dispositive motions

pursuant to 28 U.S.C. § 636(b)(1)(A). Plaintiffs, however, retain a right to have the court

reconsider the magistrate judge’s determinations “where it has been shown that the

magistrate judge’s order is clearly erroneous or contrary to law.” 28 U.S.C. §

636(b)(1)(A). In this case, the magistrate judge denied without prejudice Plaintiff’s

motions. In his “Objection,” Plaintiff does not demonstrate how the magistrate judge's

order granting an extension of time to Defendants “is clearly erroneous or contrary to

law.” 28 U.S.C. § 636(b)(1)(A). Nor does the court find that the magistrate judge’s

order was “clearly erroneous or contrary to law.” Id. The magistrate judge’s order

simply economizes the court’s and the parties’ resources. Therefore, the court will deny

Plaintiff’s “Objection.” 

IV. CONCLUSION

For the reasons stated above, IT IS ORDERED that Plaintiff’s “Objection to

Opinion and Order” [Dkt. # 68] is CONSTRUED as a motion for reconsideration and is

DENIED. 

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IT IS FURTHER ORDERED that Plaintiff’s complaint [Dkt. # 1] is DISMISSED

WITHOUT PREJUDICE for failure to pay the filing fee as directed by the court’s July 28,

2009 opinion and order. 

IT IS ALSO ORDERED that Plaintiff’s “Motion for Jury Demand” [Dkt. # 70] and

“Motion to Add These Exhibits” [Dkt. # 71] are TERMINATED AS MOOT.

Finally, IT IS ORDERED that Plaintiff’s “Objection” [Dkt. # 75] is DENIED.

s/Robert H. Cleland 

ROBERT H. CLELAND

UNITED STATES DISTRICT JUDGE

Dated: August 27, 2009

I hereby certify that a copy of the foregoing document was mailed to counsel of record

on this date, August 27, 2009, by electronic and/or ordinary mail.

s/Lisa G. Wagner 

Case Manager and Deputy Clerk

(313) 234-5522

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