1 Plaintiff, a state inmate currently incarcerated at the Carson City Correctional

Facility in Carson City, Michigan, is proceeding without prepayment of fees pursuant to

28 U.S.C. § 1915(a)(1). Complaints filed pursuant to 28 U.S.C. § 1915(a)(1) are subject

to the screening requirements of 28 U.S.C. § 1915(e)(2). Brown v. Bargery, 207 F.3d

863, 866 (6th Cir. 2000). Section 1915(e)(2) requires district courts to screen and

dismiss complaints that are frivolous, fail to state a claim upon which relief can be

granted, or that seek monetary relief from a defendant who is immune from such relief. 

28 U.S.C. § 1915(e)(2); McGore v. Wigglesworth, 114 F.3d 601, 604 (6th Cir. 1997). 

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

 

NIKO SIMMONS,

Plaintiff,

v.

PATRICIA CARUSO, et al.,

Defendants.

 /

Case Number: 08-cv-14546

ORDER CONSTRUING PLAINTIFF’S “OBJECTION TO 

PREPAYMENT OF COURT COSTS AND FEES” AS A MOTION 

FOR RECONSIDERATION AND DENYING THE “OBJECTION”

On October 27, 2008, Plaintiff Niko Simmons filed a pro se civil rights complaint

pursuant to 42 U.S.C. § 1983. On January 9, 2009, the court issued an order of partial

dismissal of Plaintiff’s due process and equal protection claims for failure to state a

claim.1 Plaintiff then sought to appeal the court’s January 9, 2009 order to the Sixth

Circuit Court of Appeals. The Sixth Circuit dismissed Plaintiff’s appeal because it was

not taken from an appealable order. On March 24, 2009, this court granted Plaintiff’s

application to proceed without prepayment of the filing fee for his appeal but ordered

that Plaintiff nonetheless pay the full filing fee of $455.00 for the appeal. (03/24/09

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Order.) Now before the court is Plaintiff’s “Objection to Prepayment of Court Costs and

Fees,” filed April 6, 2009. In his “Objection,” Plaintiff states that the “interlocutory appeal

should proceed without the $455.00 application fees being ordered because the partial

dismissal is not justified under the standard used for the partial dismissal.” (Pl.’s Obj.

1.) Because the court already ordered the payment of application fees, the court will

construe Plaintiff’s “Objection” as a motion for reconsideration and will deny it. 

Eastern District of Michigan Local Rule 7.1(g) provides that a motion for reconsideration

shall be granted only if 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). 

Plaintiff asserts that the court should not assess him the $455.00 application fees

for his appeal because the decision he appealed was incorrectly decided. (Pl.’s Obj. 2.) 

Plaintiff also contends that he should not be charged the fees because the Sixth Circuit

dismissed his appeal. (Id.) Plaintiff’s arguments for reconsideration amount to a

disagreement with the court’s March 24, 2009 order. See E.D. Mich. LR 7.1(g)(3);

Czajkowski, 967 F. Supp. at 952. Plaintiff cannot circumvent payment of fees upon

appeal merely because he disagrees with the district court’s order; nor can Plaintiff

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circumvent payment of fees upon appeal merely because the Sixth Circuit does not

decide Plaintiff’s appeal in the manner he desires. Plaintiff has not satisfied the

standard for reconsideration because he has not identified a “palpable defect” in the

court’s March 24, 2009 order, the correction of which would “result in a different

disposition of the case.” E.D. Mich. LR 7.1(g)(3). Accordingly, 

IT IS ORDERED that Plaintiff’s “Objection to Prepayment of Court Costs and

Fees” [Dkt. # 25] is construed as a motion for reconsideration and is DENIED.

s/Robert H. Cleland 

ROBERT H. CLELAND

UNITED STATES DISTRICT JUDGE

Dated: May 28, 2009

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

on this date, May 28, 2009, by electronic and/or ordinary mail.

s/Lisa G. Wagner 

Case Manager and Deputy Clerk

(313) 234-5522

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