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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

ALLEN DANIEL, #537193,

Plaintiff,

CASE NO. 2:08-CV-13999

v. HONORABLE ANNA DIGGS TAYLOR

LORI PAIONTE, et al.,

Defendants.

_______________________________/

ORDER DENYING PLAINTIFF’S MOTIONS FOR RELIEF TO CURE A RULE 8

DEFECT AND FOR RELIEF FROM JUDGMENT [DKT. #8 & #9]

The Court has before it Plaintiff’s motions for relief to cure a Rule 8 defect due to

excusable neglect and for relief from judgment [Dkt. #8 & #9]. He essentially seeks

reconsideration or relief from judgment concerning the Court’s October 7, 2008 dismissal of his

pro se civil rights complaint, filed pursuant to 42 U.S.C. § 1983, as frivolous and for failure to

state a claim upon which relief may be granted.

First, to the extent that Plaintiff seeks to cure a defect in his initial pleadings, his motion

must be denied as moot given the Court’s dismissal of his civil rights complaint. The Court

notes that it may not permit Plaintiff to amend his complaint to defeat summary dismissal. See

Baxter v. Rose, 305 F.3d 486, 488-89 (6th Cir. 2002) (citing McGore v. Wrigglesworth, 114 F.3d

601, 612 (6th Cir. 1997)); see also Clayton v. United States Dep’t. of Justice, et al., 136 Fed.

Appx. 840, 842 (6th Cir. 2005).

Second, to the extent that Plaintiff moves for relief from judgment, he essentially seeks

reconsideration of the Court’s dismissal of his complaint. However, a motion for reconsideration

which presents issues already ruled upon by the district court, either expressly or by reasonable
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implication, will not be granted. See Hence v. Smith, 49 F. Supp. 2d 547, 550 (E.D. Mich.

1999); Czajkowski v. Tindall & Assoc., P.C., 967 F. Supp. 951, 952 (E.D. Mich. 1997). Plaintiff

has not met his burden of showing a palpable defect by which the Court has been misled or his

burden of showing that a different disposition must result from a correction thereof as required

by Local Rule 7.1(g)(3).

Further, even if the Court considers Plaintiff’s motion as one brought pursuant to Federal

Rule of Civil Procedure 60(b), he is not entitled to relief. Under that rule, a district court may

grant relief from a final judgment or order only upon a showing of one of the following reasons: 

(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which

by due diligence could not have been discovered in time to move for a new trial under Rule

59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or

other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been

satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or

otherwise vacated, or it is no longer equitable that the judgment should have prospective

application; or (6) any other reason justifying relief from the operation of the judgment. Fed. R.

Civ. P. 60(b). Plaintiff has made no such showing. His civil rights complaint was properly

dismissed as frivolous and for failure to state a claim upon which relief may be granted under 42

U.S.C. § 1983. Accordingly, Plaintiff’s motions are DENIED. This case is closed.

IT IS SO ORDERED.

s/ Anna Diggs Taylor

ANNA DIGGS TAYLOR

UNITED STATES DISTRICT JUDGE

Dated: November 7, 2008
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CERTIFICATE OF SERVICE

The undersigned certifies that a copy of the foregoing Order was served upon Petitioner/Plainitff by First

Class U.S. mail on November 7, 2008.

Allen Daniel, #537193 

Baraga Maximum Correctional Facility 

13924 Wadaga Road 

Baraga, MI 49908 s/Johnetta M. Curry-Williams

Case Manager